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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harry Ross v State of Alaska Human Rights Commission (8/30/2019) sp-7405

Harry Ross v State of Alaska Human Rights Commission (8/30/2019) sp-7405

          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  


                      THE SUPREME COURT OF THE STATE OF ALASKA                                   

HARRY  ROSS,                                                       )  

                                                                   )   Supreme  Court  No.  S-16961  

                               Appellant,                          )  


                                                                   )   Superior Court No. 3AN-16-09261 CI  

          v.                                                       )  


                                                                   )   O P I N I O N  


ALASKA STATE COMMISSION FOR                                        )



HUMAN RIGHTS,                                                      )   No. 7405 - August 30, 2019


                               Appellee.                           )  



                                  rom the Superior Court of the State of Alaska, Third  

                    Appeal f 


                     Judicial District, Anchorage, Erin B. Marston, Judge.  


                    Appearances:  Mark Choate, Choate Law Firm LLC, Juneau,  


                     for Appellant. William E. Milks, Assistant Attorney General,  


                     and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  



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


                     and Carney, Justices.  


                    WINFREE, Justice.  



                    After 36 years of service with the Alaska Railroad Corporation - most of  


those years as a conductor - an African-American man applied for a newly created  


managerial trainmaster position, but he was not chosen.  He brought an unsuccessful  


internal racial discrimination  complaint.   He brought  a  similar complaint before  the  

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


Alaska State Commission for Human Rights, and it was denied. He then appealed to the  


superior court, and it ultimately affirmed the Commission's determination that he had  


failed to carry his burden of showing racial discrimination.  


                    On appeal to us, the man contends that the Railroad's stated reasons for not  


hiring him were pretextual. Although there is some basis for his arguments that a hiring  


panel member may have harbored racial prejudice and that the explanation that he was  


not chosen because of poor interview performance was a post-hoc rationalization, we  


reviewtheCommission's determinationonlyfor substantial supportingevidence. Under  


this deferential standard of review, we conclude that the evidence detracting from the  


Commission's  determination  is  not  dramatically  disproportionate  to  the  supporting  


evidence.  Because substantial evidence in the record thus supported the Commission's  


determination, we affirm the superior court's decision upholding it.  



          A.        Facts  


                    Harry Ross is an African-American who was hired as a brakeman by the  


then-federally-owned  Railroad  in  1968,  promoted  to  conductor  around  1974,  and  


promoted  to  yardmaster  in  1982.                    He  testified  that  when  he  was  a  brakeman  and  


conductor, African-American colleagues commonly were referred to by a racial slur and  


the  slur  was  used  in  his  presence  to  deride  an  African-American  colleague's  


performance. Ross asserted that when he was a yardmaster efforts were made to reduce  


his higher evening-shift pay to increase a white colleague's pay, and an employee -  


apparently white - he had trained to become a yardmaster later was chosen over him  


for a higher position.  


                    After three years as a yardmaster, Ross returned to being a conductor in  


1985.   He testified that he chose to return to the conductor position because of the  


discrimination he had endured as a yardmaster. Personnel records indicate that when the  

                                                               -2-                                                        7405

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federal  government  transferred  the  Railroad  to  the  State  of  Alaska  in  1985,  his  


employment terminated; hethen was rehiredby theState-owned Railroad asaconductor.  


                    Ross still was a conductor in 2004 when he learned the Railroad was hiring  


for ninenewmanagerialtrainmaster positionsto be located inAnchorage, Fairbanks, and  


Talkeetna.  The position description listed minimum qualifications of "15 years of train  


service experience and one year supervising, directing, or being a team leader for train  


operations  personnel."                The  trainmaster  positions  were  non-union,  and  length  of  


experience was not determinative. Ross was among 18 candidates selected to interview  


for the 9 new positions; he sought one of the proposed Anchorage positions.   Two  


candidates were African-American; the rest were white.  


                    A panel of five white Railroad  employees interviewed  candidates and  


recommended whom to hire; the recommendations were accepted in their entirety.  The  


hiring panel was supposed to conduct interviews using a questionnaire with 25 graded  


questions, 3 ungraded questions, and 1 graded itemtitled "Interview Presentation." Ross  


responded to a question about his reasons for applying by citing his experience, his  


desire to increase his pension based on a better "high three" salary years, his enjoyment  


of working with people, and his wish to better support his new wife.  He responded to  


a question about computer proficiency by stating that his skills were "basic."  


                    The  panelists  eventually  abandoned  the  grading  system  because  the  


candidates were not consistently asked the same questions and because panelists did not  


receive instruction on its proper use.  Panelists testified that they instead discussed the  


candidate's  strengths  and  weaknesses  after  each  interview,  and  that,  in  a  group  


discussion  after  concluding  all  the  interviews,  they  decided  which  candidates  to  


recommend.  Four panelists made notes about some candidates' interview performance  


and qualifications; it appears that only one made notes, which were negative, about  


Ross's performance.  

                                                                -3-                                                         7405

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                    The Railroad made offers to only 7 of 18 applicants, despite recruiting for  


9 positions.  Two positions were left vacant in Anchorage; neither Ross nor the other  


African-American candidate was offered a position. Although no successful Anchorage  


candidate had as long a tenure as Ross, all had been with the Railroad for many years -  


one for 22 years, two for 29 years, and one for 30 years.   The Railroad continued  


recruiting to fill the vacancies, reducing the minimum required years of experience from  


15, when Ross applied, to 5 in 2005.  


                    Ross filed an internal complaint with the Railroad in November 2004,  


alleging that he was not chosen for a trainmaster position because of his race.   The  


complaint was investigated by Ouida Morrison, the Railroad's African-American equal  


employment  opportunity  manager;  she  reviewed  notes  panelists  made  during  the  


interviews and conducted individual interviews with Ross and the panelists.  


                    Two of the panelists - Pat Flynn and Curt Rudd - allegedly had past  


racially fraught interactions with Ross.  Morrison testified to hearing from a colleague  


that Ross once had remarked that white people look alike and that this remark upset  


Flynn.       Morrison memorialized this account in an email to the Railroad's counsel,  


concluding that Flynn had "formed an opinion about [Ross] and never let it go."  But it  


does not appear that Flynn was asked about the alleged incident during the subsequent  


discrimination investigations, and neither Flynn nor the colleague was questioned about  


it during the Commission's administrative hearing.  


                    Rudd admitted in testimony that he had referred to Ross by the nickname  


"Black Magic" for the 30 years they had known each other.   Rudd testified that the  


nickname  reflected  Ross's  apparently  supernatural  ability  to  turn  trains  around  on  


schedule and that Ross had adopted the nickname for himself. Rudd further testified that  


the nickname was never meant to offend Ross and that Rudd ceased using the nickname  


when Ross objected to it in 2008.   Ross denied ever referring to himself as "Black  

                                                               -4-                                                         7405

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


Magic," which he considered "kind of racist"; he said he felt the nickname was part of  


an ingrained hostile workplace culture that he had to let pass.  


                    Flynn  and  Rudd  may  have  played  a  disproportionate  role  in  deciding  


whether to hire Ross as trainmaster.  Rudd was the Anchorage terminal superintendent  


and would have been Ross's direct supervisor; Flynn testified that both he and Rudd  


would supervise trainmasters located in Anchorage.  Morrison and the Railroad's Vice  


President ofOperations,who ultimatelywasresponsibleforthehiring decisions, testified  


that Flynn had been designated the lead panelist.  


                    Morrison testified that the panelists told her that when interviewing they  


focused on candidates' ability to communicate and interact, especially with younger  


colleagues.  Morrison also testified that Ross told her he had been offended when Flynn  


entered Ross's interview late.  Morrison concluded that Ross had performed poorly in  


the interview and that "he did not relay or sell himself that he was willing and wanting  


and desiring to do the job."  But she never issued a formal determination whether the  


panel had discriminated against Ross.  


                    In April 2005 Ross filed a complaint with the Commission, claiming that  


the Railroad discriminated against him in violation of AS 18.80.220(a)(1), prohibiting  


employment discrimination based on race.  The Commission investigator interviewed  


Ross and the panelists. The investigator issued a two-page determination in March 2007,  


finding that the Railroad did not offer Ross a trainmaster position because he provided  


short  answers and failed  to  elaborate during  the interviews, did  not "sell himself,"  


conveyed  that  he  felt  "entitled"  to  the  position,  and  lacked  computer  skills.                                     The  


Commission therefore dismissed Ross's complaint without a hearing.  

          B.        Proceedings  


                    Ross appealed the Commission's dismissal to the superior court.   The  


superior  court  issued  its  first  decision  in  March  2008.                              The  court  relied  on  the  

                                                               -5-                                                         7405

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U.S.   Supreme Court's three-part                     McDonnell Douglas Corp. v. Green                           test.   We have   


stated that, absent "direct evidence"                                                                                           

                                                           of discriminatory intent, the three-part test should  

                                                                  3  Under the McDonnell Douglas framework,  



be used to analyze discrimination claims. 

the  complainant  bears  the  initial  burden  of  establishing  a  prima  facie  case  of  


discrimination: membership in a protected class, application to a position for which the  


           1         411  U.S.  792  (1973).  

           2         "[T]he  term  'direct  evidence'  refers  to  the  quantum  of  proof ;  it  is  not  used  

as   an   antonym   for   'circumstantial   evidence.'     In   order  to   show   direct   evidence   [of  

discriminatory   intent,]   the   plaintiff   must   'at   least   offer   either   direct   evidence   of  

prohibited   motivation   or   circumstantial   evidence   strong   enough   to   be   functionally  

equivalent  to  direct  proof.'  "   Smith  v.  Anchorage  Sch.  Dist.,  240  P.3d  834,  840  (Alaska  

2010)  (emphasis  in  original)  (first  quoting  Kinzel  v.  Discovery  Drilling,  Inc.,  93  P.3d  

427,  434  (Alaska  2004);  then  quoting  Mahan  v.  Arctic  Catering,  Inc.,  133  P.3d  655,  662  

(Alaska  2006)).  

           3         See  VECO, Inc.  v.  Rosebrock,  970  P.2d  906,  918  (Alaska  1999) ("In  


determining whether an employer has violated [Alaska's Human Rights Act] when there  


is no direct evidence of discriminatory intent, we have adopted the three-part framework  


used  in  Title VII  cases."); Peterson  v. State, Dep't  of Nat.  Res., 236  P.3d 355, 364  


(Alaska 2010) ("Because it is  'usually impossible' for an employee to prove that the  


actions of an employer were motivated by discriminatory intent, we have adopted the  


three-part pretext analysis . . . for claims of employment discrimination where there is  


no direct evidence of discriminatory intent, known as the McDonnell Douglas test.").  


                     If there is "direct evidence" of discriminatory intent in a mixed motive case,  


we  apply the  framework  from Price  Waterhouse v. Hopkins, 490  U.S.  228  (1989),  


superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074.  


Era Aviation v. Lindfors, 17 P.3d 40, 44 (Alaska 2000), superseded on other grounds by  


regulation as stated in Moody v. Royal  Wolf Lodge, 339 P.3d 636, 640 (Alaska 2014).  


Under the Price  Waterhouse framework for mixed motive cases - those "based on a  


mixture of legitimate and illegitimate considerations" - if the plaintiff produces direct  


evidence of discriminatory intent, the burden  shifts to the defendant to show that the  


decision would have been the same absent the influence of discriminatory intent.  Id.  


(quoting VECO, 970 P.2d at 920-21).  Ross argues that the explanations why he was not  


hired were pretextual; he does not argue that this is a mixed motive case.  



                                                                   -6-                                                            7405

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complainant was qualified, denial of the application, and hiring of a person not within   


the same protected class as the complainant.                                                                                         

                                                                        If the complainant establishes a prima facie  


case, the burden shifts to the employer to offer "legitimate, nondiscriminatory reasons  

                                               5  An employer "need only produce admissible evidence  



for the employment action." 

which would allow the trier of fact rationally to conclude that the employment decision  


had not been motivated by discriminatory animus."6   If the employer offers a legitimate,  


credible reason for not hiring the complainant, the burden shifts back to the complainant  


to prove that the reason is pretextual.7  "[A] complainant may demonstrate pretext 'either  


directly by persuading the [tribunal] that a discriminatory reason more likely motivated  


the employer or indirectly by showing that the employer's proffered explanation is  


unworthy of credence.' "8  


                      The superior court distinguished between the amount of evidence needed  


to prevail under the test at an adjudication and the amount of evidence needed (at that  



time) to compel an administrative hearing based on an investigation by the Commission.   


           4         Raad   v.  Alaska   State   Comm'n  for  Human  Rights,   86   P.3d   899,   904-05  

(Alaska  2004).  

           5         Id.  at  905.  

           6         Id .  (quoting   VECO,  970  P.2d  at  919).  

           7         Id .  

           8         Id .   (quoting   Tex.  Dep't   of   Cmty.  Affairs   v.  Burdine,   450   U.S.   248,   256  


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


1375 (Alaska  1995), superseded  on  other grounds by  statute,  AS  18.80.112(b), as  


recognized  in Huit  v. Ashwater Burns, Inc. , 372 P.3d  904, 914 n.52  (Alaska 2016).  


When Ross filed his complaint, the Commission was authorized to dismiss complaints  


only for lack of substantial evidence; in 2006 the legislature enacted AS 18.80.112(b),  



                                                                    -7-                                                             7405

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A complainant needed only establish a prima facie case and offer facts raising a "genuine                                                   

dispute about [the employer's] explanation of its decisions" to meet the evidentiary                                                    

                                                                                        10     The  court  determined  Ross  had  

threshold   to   obtain   an   administrative   hearing.                                                                                              

established a prima facie case of discrimination and offered facts raising a genuine  


dispute about the Railroad's explanation by offering documents the Commission had not  


addressed  because  of  its  limited  investigation.                                           The  court  therefore  ordered  the  


Commission to hold a full evidentiary hearing.  


                        A hearing was held before an administrative law judge (ALJ) in January  


2009. Ross testified to past discrimination at the Railroad, including the common use of  


racial slurs earlier in his career and a specific instance when he heard a slur used to refer  


to an African-American colleague.  He also testified to instances when he felt racist and  


discriminatory behavior had been directed at him.  Ross testified that Rudd's "Black  


Magic" nickname referred to Ross's race and was offensive.  Ross said that he had been  


training an apparently white subordinate who was promoted to a position that Ross also  


had applied for and that he believed the promotion was motivated by discrimination.  


Ross testified to being "annoyed" by Flynn's late arrival to the interview, but Ross  


insisted that it did not affect his performance.   He testified that in his interview he  


stressed his experience as a yardmaster and his desire to train younger workers.  


                        Each  hiring  panelist  testified,  offering  accounts  of  the  trainmaster  


candidates'  interviews  -  Ross's  in  particular  -  consistent  with  the  internal  and  


Commission investigations' findings.   Panelists testified that they were looking for  


candidates to "sell themselves" on why they deserved the position and to demonstrate  


            9           (...continued)  


allowing the Commission to dismiss complaints for prudential reasons.  See Toliver v.  


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

            10          Meyer, 906 P.2d at 1375.  


                                                                            -8-                                                                    7405

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


an ability to communicate. Panelists testified that Ross gave short responses to questions  


and failed to elaborate on how his experience qualified him for the trainmaster position,  


leading some to discount the value of his experience despite knowing his tenure and  


service as a yardmaster.  


                    Panelists testified that Ross appeared to lean too heavily on his experience,  


seemingly taking for granted that his experience would guarantee him a position. Flynn  


testified that this demonstrated a "seniority mentality."  Flynn and two others testified  


that Ross appeared more interested in benefitting from the position - particularly a  


higher pension - than in benefitting the Railroad.  


                    Three former Railroad employees testified to racism and discrimination at  


the  Railroad.           A  white  former  employee  testified  to  a  general  culture  of  racial  


discrimination during his time at the Railroad.  An African-American former employee  


testified to:  hearing racial slurs; witnessing, sometime in the 1990s, a white employee  


use a racial slur when telling Ross not to sit in the same train car; and experiencing  


discrimination similar to what Ross alleged. Specifically, the former employee testified  

that when he was a yardmaster in 1993, he interviewed to become a terminal manager  


- a position with the same duties as yardmaster - and an interviewer accused him of  


being interested only in earning his "high three."  He testified that the interviewer later  


told him he should not get the raise that came with the promotion, and that another  


interviewer - possibly Rudd - made a comment to the effect that he was too lazy for  


the job.  He filed a complaint with the Railroad, but it found no discrimination.  


                    Another African-Americanformeremployeetestifiedtohearingacolleague  


describe him to a third person using a racial slur in 2003 after the colleague thought their  


telephone conversation had ended.  He testified that in 2003 or 2004 he had applied for  


a  training  program,  that  he  had  the  most  seniority  of  those  who  applied,  that  the  


employee who was selected had the least seniority, and that selection traditionally had  

                                                                -9-                                                         7405

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

been based on seniority.   The former employee had filed complaints with the Railroad   

and then the Commission, but both complaints apparently were denied.                                                                                                                           He later quit.          

                                   WitnessestestifiedthatonlyahandfulofAfrican-American employees                                                                                                                        held  

management positions at the Railroad around the time of the trainmaster interviews and                                                                                                                                      

that none of these positions were in the transportation division. Apparently the only two                                                                                                                                   

African-American    employees    in    management    in    2004    were    Morrison    and   the  

administrative support staff supervisor.                                   

                                   The   ALJ   issued   a   recommendation   to   the   Commission   in   July  2009.   

Applying the second and third prongs of the                                                                       McDonnell Douglas                                      test, the ALJ found that                           

the Railroad had offered a legitimate business reason for its decision, shifting the burden                                                                                                                        

back to Ross to "persuad[e] the [tribunal] that a discriminatory                                                                                                                reason  more likely   

motivated the employer or . . . that the employer's proffered explanation is unworthy of                                                                                                                                        

                            11   The ALJ ultimately was not persuaded by Ross's claim that the Railroad's  


explanation was pretextual.  


                                   In response to Ross's argument that use of racial epithets and lack of  


African-American   managers   demonstrated   a   workplace   culture   denying   equal  


opportunity toAfrican-Americanemployees, theALJ first concludedthatthegeneraluse  


of racial slurs in the workplace was not probative of animus in the specific hiring process  


for  trainmasters.   The ALJ then concluded that Rudd's using the nickname "Black  


Magic"  and  his  involvement  in  denying  the  other  African-American  employee's  


application for terminal manager may have been relevant, because Rudd participated in  


the  trainmaster  hiring  process,  but  that  Rudd  did  not  mean  "Black  Magic"  to  be  


derogatory and the hiring decisions were made as a group. The ALJ also concluded that  


the lack of African-American managers was not probative because it did not indicate the  


                  11               Raad,  86  P.3d  at  905  (quoting  Burdine,  450  U.S.  at  256).  

                                                                                                             -10-                                                                                                                 7405  

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

Railroad's specific intent in hiring for the trainmaster position and was not placed in a                                                                                                                                                                                                                                                          

broader statistical context.                                                                                             

                                                            In response to Ross's argument that the Railroad's explanation was a post-                                                                                                                                                                                                                                   

hoc   rationalization   facilitated   by   a   flawed   hiring   process,   the   ALJ   concluded   that,  

although the hiring process was flawed, the explanations the panelists provided were                                                                                                                                                                                                                                                                                          

related to thetrainmaster                                                                                     position's responsibilities and likely not fabricated. In                                                                                                                                                                                      response  

to   Ross's   argument   that   his   not   being   hired   despite   having   superior   qualifications  

demonstrated discrimination, the ALJ concluded that his tenure and job history were not                                                                                                                                                                                                                                                                                               

determinative because the position                                                                                                                                 was non-union and                                                                             merit   based   and   because of   

credibletestimony                                                                  that thenewtrainmaster position andhis previousyardmasterposition                                                                                                                                                                                                             

differed.     The ALJ further concluded that Ross failed to inform the panel how his                                                                                                                                                                                                                                                                                                  

relevant experience qualified him to be a trainmaster.  The ALJ recommended that the                                                                                                                                                                                                                                                                                                   

Commission dismiss Ross's complaint because he failed to prove discrimination.                                                                                                                                                                                                                                                                                                 

                                                            The Commission adopted the ALJ's recommendation, and Ross appealed                                                                                                                                                                                                                               

to the superior court.                                                                          The court found that the ALJ had failed to adequately scrutinize                                                                                                                                                                                        

the hiring panel's reliance on subjective hiring criteria, relying on Ninth Circuit Court                                                                                                                                                                  

of Appeals case law finding such criteria prone to conceal conscious and unconscious                                                                                                                                                                                                                                                        

                                                                    12           The court therefore remanded the matter for the ALJ to consider, in  


light of pertinent Ninth Circuit case law, the panel's use of subjective criteria in the  


hiring process.  


                              12                            The superior court cited the following cases:                                                                                                                                                          Xin Liu v. Amway Corp.                                                                                       , 347   

F.3d 1125, 1136-37 (9th Cir. 2003);                                                                                                                              Jauregui v. City of Glendale                                                                                                    , 852 F.2d 1128, 1135-                                                    

36 (9th Cir. 1988);                                                                   Atonio v. Wards Cove Packing Co.                                                                                                                                  , 810 F.2d 1147, 1481 (9th Cir.                                                                                            

 1987) (en banc);                                                          Nanty v. Barrows Co.                                                                               , 660 F.2d 1327, 1334 (9th Cir. 1981),                                                                                                                                    overruled  

on other grounds by O'Day v. McDonnell Douglas Helicopter Co.                                                                                                                                                                                                                                      , 79 F.3d 756, 760 (9th                                                         

Cir. 1996).                                        

                                                                                                                                                                                          -11-                                                                                                                                                                                 7405

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

                                  In April 2014 the ALJ issued a revised recommendation identical in most                                                                                                    

respects to the previous recommendation, but the ALJ also observed that several white                                                                                                                      

employees who met the minimum qualifications had not been selected and that hearing                                                                                                                   

testimony    indicated    other    candidates    had    been    evaluated   based    on    interview  

performance.                                The           Commission                           issued               a      final            order             adopting                   the          revised  

recommendation with little explanation, although one commissioner dissented on the                                                                                                                               

ground   that   the   "interview   process   was   highly   subjective   and   a   ready   vehicle   for  

unintentional   discrimination."     The   superior   court   then   affirmed   the   Commission's  

revised determination.                                     This appeal followed.            

III.             STANDARD OF REVIEW                             

                                  "When   a   superior   court   acts   as   an   intermediate   appellate   court   in   an  


administrative matter, 'we independently review the merits of the agency's decision.' "                                                                                                                                    



WereviewaCommission decision for substantial supportingevidence.                                                                                                                   "'[S]ubstantial  


evidence[]' . . . is 'such relevant evidence as a reasonable mind might accept as adequate  



to  support'  the  agency's  conclusion."                                                                     "The  substantial  evidence  test  is  highly  


deferential, but we still review the entire record to ensure that the evidence detracting  


from  the  agency's  decision  is  not  dramatically  disproportionate  to  the  evidence  

                 13              Pub.   Safety   Emps.   Ass'n,  AFSCME   Local   803,   AFL-CIO   v.   City   of  

Fairbanks, 420 P.3d 1243, 1248 (Alaska 2018) (quoting                                                                                        State, Dep't of Admin., Div. of                                        

Ret. & Benefits v. Shea                                   , 394 P.3d 524, 528-29 (Alaska 2017)).                                          

                 14              Pyramid Printing Co. v. Alaska State Comm'n for Human Rights, 153 P.3d  


994, 998 (Alaska 2007) ("A determination by the Human Rights Commission will stand  


if it is supported by substantial evidence.").  


                 15              Local 803, 420 P.3d at 1248 (quoting Shea v. State, Dep't of Admin., Div.  


of Ret. & Benefits, 267 P.3d 624, 630 (Alaska 2011)).  


                                                                                                       -12-                                                                                                 7405

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

supporting    it    such    that    we    cannot   'conscientiously'    find    the    evidence    to    be  

'substantial.' "   16  



          A.        Legal Standard And Scope Of Review  


                    Ross argues that the Railroad's explanation for not selecting him was  


pretextual.        As  noted  earlier,  we  apply  the  three-part  McDonnell  Douglas  test  to  


discrimination claims based on pretext if there is no direct evidence of discriminatory  



              Ross and the Railroad agree that the test's first two prongs - a prima facie  


showing that the employee was qualified but that no member of the employee's race was  


hired,  and  the  employer's  offer  of  a  legitimate  business  reason  for  not  hiring  the  


employee - have been met.  The sole question for us on review is whether substantial  


evidence supports the Commission's determination that Ross did not satisfy the third  


prong  by  showing  the  offered  reasons  for  not  hiring  him  were  a  pretext  for  


discrimination.           We  have  noted,  when  applying  a  similarly  deferential  standard  of  


review, that the deferential standard of review may result in a decision we might not have  



reached were we the initial decision maker. 

          16        Id.  (emphasis  in  original)  (quoting  Shea,  267  P.3d  at  634  n.40).  

          17        See  VECO,  Inc.  v.  Rosebrock,  970  P.2d  906,  918  (Alaska  1999);  Peterson  

v.  State,  Dep't  of  Nat.  Res.,  236  P.3d  355,  364  (Alaska  2010).  

          18        See  State  v.  Pub.  Safety  Emps.  Ass'n ,  235  P.3d   197,  202   (Alaska  2010)  

(stating   in   appeal   of   arbitration   clearing   police   officer   of   multiple   allegations   of  

misconduct that  "[i]f  we were reviewing this case in the first instance, or under a less  

deferential  standard,  we  likely  would  not  have  reached  [the  same]  conclusion").  

                                                             -13-                                                        7405

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


          B.        Substantial Evidence Supporting The Commission's Determination  


                     1.       Rudd's use of "Black Magic"  


                    Ross argues that Rudd's use of the nickname "Black Magic" reflects racial  


animus  that,  when  considered  together  with  flaws  in  the  hiring  process  and  other  


evidence of discrimination by the Railroad, demonstrates Ross was not hired because of  


his race.  Ross disputes Rudd's testimony that the nickname reflected Ross's magical  


ability with trains rather than racial prejudice, pointing to the term's negative association  


with "Satanismand devil-worship." Ross suggests that, even if not explicitlyprejudicial,  


the  term's  racial  reference  and  connotations  should  be  considered  circumstantial  


evidence of discriminatory intent.  


                    The  Railroad  responds  by  invoking  the  ALJ's  conclusion  that  Rudd  


credibly  testified  he  had  not  intended  "Black  Magic"  to  be  derogatory  based  on  


widespread use of nicknames in the railyard and his ceasing use of the nickname when  


Ross  asked.            The  Railroad  concedes  that  "Black  Magic"  may  be  considered  


circumstantial  evidence  of  discriminatory  intent  along  with  other  evidence,  but  it  


concludes that, even so, it would not make unreasonable the ALJ's finding that Ross was  


not denied the trainmaster position because of discrimination.  


                    The ALJ found that "[b]ased on the testimony, the use of th[e] name, while  


racial, was not intended to be derogatory."  But the ALJ also noted:  


                    Although  not  intended  as  derogatory,  reasonable  people  


                    could view the nickname as derogatory.  This is especially  


                    true in light of the testimony that racial epithets had been  


                    used at the [Railroad] in the not-so-distant past.  Mr. Rudd's  


                    use of this term may reflect a conscious or unconscious bias,  


                    and the apparent acceptance of his use of this term by others  


                    may  reflect  a  more  general  conscious  or  unconscious  


                    discriminatory attitude that could have spilled over into the  


                    interview process.  

                                                               -14-                                                         7405

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

                                          The ALJ concluded that the nickname "may be circumstantial evidence of                                                                                                                                                        

a discriminatory attitude and will be considered in conjunction with the entire record."                                                                                                                                                             

The ALJ did not discount that                                                                          the nickname might be probative of discrimination,                                                                     

concluding only that it did not necessarily establish discrimination in the decision not to                                                                                                                                                                              

hire Ross and had to be considered in light of other evidence.                                                                                                                                      This essentially is how                                      

Ross argues that it should be considered, although he seems to believe the ALJ should                                                                                                                                                                    

have found the intent behind using the nickname was necessarily prejudicial.                                                                                                                                                                       

                                          "The substantial evidence test is highly deferential, but we still review the                                                                                                                                              

entire record to ensure that the evidence                                                                                       detracting  from the agency's decision is not                                                                                       

dramatically   disproportionate   to   the   evidence   supporting   it   such   that   we   cannot  

                                                                                                                                                                            19  We do not review in isolation  

 'conscientiously' find the evidence to be 'substantial.' "                                                                                                                                                                                         

whether "Black Magic" was indicative of racial animus; we instead do what the parties  


request, namely review the record as a whole, keeping in mind that "Black Magic" may  


be probative of discriminatory intent.  


                                          2.                   Flynn's alleged racial prejudice  


                                          Ross also alleges that Flynn harbored racial prejudice against him and that  


it tainted the hiring process.   Ross cites Morrison's email to the Railroad's counsel  


stating that Flynn had "formed an opinion about [Ross] and never let it go."  Ross also  


cites Flynn's explanation during the investigation that one reason he did not want to hire  


Ross was because Flynn had learned that Ross could not complete the application by  


computer.  Ross infers from this that Flynn likely believed, based on racial stereotypes,  


that Ross was unintelligent.  


                     19                  Local  803, 420  P.3d  at  1248  (emphases  in  original)  (quoting  Shea, 267 P.3d  

at  634  n.40).  

                                                                                                                                 -15-                                                                                                                                       7405  

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


                    The ALJ did not address these allegations in its recommendation, although  


supporting evidence was presented at the administrative hearing.  Presumably the ALJ  


did not find Ross's allegations persuasive, and we do not find that decision necessarily  


unreasonable.  It does not appear that Flynn was asked about his alleged bias during  


either the investigation or the administrative hearing, and Morrison's third-hand account  


alone is not necessarily conclusive.   And although there may be reason to infer that  


Flynn's stated concern about Ross's computer skills was disingenuous - one candidate  


was selected even though he told the panelists his computer skills were "not great" and  


he "may need some training," and he also had completed the application by hand - Ross  


offers nothing  indicating  that Flynn's true motives were discriminatory  aside from  


Morrison's account and a conclusory statement that Flynn must have believed Ross  


could not complete the application using a computer because of his race.  


                    3.        Subjective criteria  


                    Ross argues that the hiring panel's explanation that it based its hiring  


recommendations on enthusiasm should be closely scrutinized because using subjective  


hiring criteria such as enthusiasm often masks discriminatory intent.  Ross asserts that  


this explanation cannot withstand close scrutiny in light of evidence of racial animus,  


because  enthusiasm  was  unrelated  to  the  job  qualifications  for  trainmaster  or  the  


interviewquestionnairethepanelabandoned,and becausepanelists' testimony regarding  


Ross's  interview  demeanor  contrasted  with  their  testimony  that  he  was  normally  


outgoing and "animated."  Ross notes that some panelists knew of his long tenure with  


the Railroad - including his experience in what he considered to be the comparable  


yardmaster position - but that they failed to share this information, and he also notes  


that the panel did not review personnel records.  


                    The Railroad responds that interview performance constituted a legitimate  


basis for recommending whom to hire into a non-union, supervisory position, where  

                                                              -16-                                                         7405

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

 seniority was not determinative.                                                                                                                           The Railroad argues that using enthusiasm as a cover                                                                                                                                                                             

 for discrimination would require an unlikely conspiracy among panelists and that the                                                                                                                                                                                                                                                                                                   

panel's decision not to recommend three white candidates because of poor interview                                                                                                                                                                                                                                                                                             

performances indicates it instead based its decisions on interview performance.                                                                                                                                                                                                                                                                                                                      The  

 Railroad further argues that evidence shows the panelists agreed Ross performed poorly                                                                                                                                                                                                                                                                                                       

 in his interview and that he was not recommended for that reason.                                                                                                                                                                                                                       

                                                                The ALJ                                   foundthepanelists' testimony                                                                                                                   regarding hiring criteriapersuasive   

because, although subjective, enthusiasm for the position served a legitimate business                                                                                                                                                                                                                                                                                              

purpose   and   was   related   to   the   job   description,   especially   given  the   position's  

 supervisory nature. The                                                                                           ALJ found persuasive thepanelists'                                                                                                                                      testimony that Ross was not  

recommended because he failed to show enthusiasm, despite testimony that he normally                                                                                                                                                                                                                                                                                              

was outgoing.                                                             Ross testified                                                            to   being   annoyed   during   his   interview,   and   panelists  

 testified that they felt his mention of wanting a higher pension indicated he was solely                                                                                                                                          

 interested in how the position could benefit him.                                                                                                                                                                                         

                                                                The Ninth Circuit repeatedly has stated that use of subjective hiring criteria                                                                                                                                                                                                                                              

 should   be   closely   scrutinized   because   such   use   readily   can   serve   as   a   cover   for  

                                                                         20          It has favorably cited the Tenth Circuit's observation that "subjective  


 criteria such as 'dedicated' and 'enthusiasm' may offer a convenient pretext for giving  


                                20                              See   Xin   Liu   v.   Amway   Corp.,   347   F.3d   1125,  1136   (9th   Cir.   2003)  

 ("[S]ubjective evaluations . . . are particularly 'susceptible of abuse and more likely to                                                                                                                                                                                                                                          

 mask pretext.' " (quoting                                                                                                    Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990)));                                                                                                                                                                                             

Jauregui v. City of Glendale                                                                                                            , 852 F.2d 1128, 1135-36 (9th Cir. 1988);                                                                                                                                                              Atonio v. Wards                                

 Cove Packing Co.                                                                     , 810 F.2d 1477, 1484 (9th Cir. 1987) (en banc) ("Subjective practices                                                                                                                                                                                                                       

 may well be a covert means to effectuate intentional discrimination . . . .");                                                                                                                                                                                                                                                                                                      Nanty v.   

Barrows Co.                                                     , 660 F.2d 1327, 1334 (9th Cir. 1981) ("Subjective job criteria present                                                                                                                                                                                                                                                  

potential for serious abuse and should be viewed with much skepticism."),                                                                                                                                                                                                                                                                                      overruled on   

 other grounds by O'Day v. McDonnell Douglas Helicopter Co.                                                                                                                                                                                                                                                      , 79 F.3d 756, 760 (9th                                                                 

 Cir. 1996).   

                                                                                                                                                                                                      -17-                                                                                                                                                                                            7405

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

force   and   effect   to   prejudice,   and   can   create   a   strong   inference   of   employment  



                            Wethereforeclosely examinetheRailroad's useofsubjectivecriteria.  


                    Panelists testified that they based their recommendation decisions not just  


on candidates' enthusiasmfor the position but also on their ability to communicate. Ross  


is incorrect that these criteria were unrelated to the trainmaster qualifications or to the  


interview  questionnaire.                  The  position  description  listed  "communication"  and  


"supervision  and  control"  as  job  responsibilities.                            A  trainmaster's  duties  include  


"[p]rovid[ing] employees with feedback on specific issues relating to job performance."  


Given the position's supervisory nature, it makes sense that the position description  


would place importance on an ability to communicate clearly with subordinates.  


                    The interview questionnaire reflected the position description's emphasis  


on communication.  One question read:  "Good communicating skills are necessary to  


be an effective supervisor.  Describe your communicating skills."  The questionnaire  


further indicated that enthusiasm was an important hiring criterion.  For example, one  


question asked, "How will the Alaska Railroad benefit from you being selected for this  




                    Ross suggests that the panel wholly abandoned the position description and  


questionnaire, but this was not the case. The panel did not ask all the questions to all the  


candidates, and it abandoned the grading system because of this and because of a lack  


of direction on using the grading system.  But some panelists made notes serving as a  


reasonableproxy for grading enthusiasmand ability to communicate. For example, three  


panelists wrote that Ross said he wanted a better "high three" for his pension.  Three  


wrote that Ross mentioned his supervisory experience; two wrote that he said he enjoyed  



                    Xin Liu , 347 F.3d at 1137 (quoting Lujan v. Walters, 813 F.2d 1051, 1057  


(10th Cir. 1987)).  

                                                               -18-                                                             7405  

----------------------- Page 19-----------------------


working with people.  Two wrote that he said he wanted the position to support his new  


wife.  One wrote that he "did not offer a lot of info [and] did not explain in great detail  


on some of the questions."  


                    The panelists' testimony that recommendation decisions were based on  


interview performance is consistent with an emphasis on enthusiasm and ability to  


communicate.  For example, panelists testified that they felt Ross performed poorly in  


his interview because he gave short answers, which did not convey his desire to become  


trainmaster, and because he appeared to feel entitled to the position. Ross discounts this  


testimony because several panelists knew himto be normally outgoing, but at the hearing  


he admitted that he was "annoyed" when Flynn arrived late to the interview, which may  


well have affected Ross's demeanor.   Regardless, panelists testified  that they were  


concerned with candidates' enthusiasm for the trainmaster position, not whether they  


were generally outgoing or animated.  


                    Wefind unpersuasiveRoss'sargumentsthatpanelists whoknewofhis long  


tenure  with  the  Railroad  and  his  yardmaster  experience  should  have  shared  this  


information  and  that  the  panelists  should  have  consulted  personnel  records.                                       Ross  


essentially suggests that the panel should have decided whom to recommend based on  


candidates'  experience.                 But  as  the  ALJ  observed,  the  trainmaster  position  was  


supervisory and non-union; mere tenure was not determinative.  And the ALJ found  


credible  the  testimony  that  the  new  trainmaster  and  former  yardmaster  positions  


materially differed and that Ross failed to inform the panel of relevant aspects of his  


experience.  Although Ross testified that he stressed his experience in his interview, we  


generally  defer  to  the  fact  finder's  credibility  determinations  when  reviewing  

                                                              -19-                                                         7405

----------------------- Page 20-----------------------


 administrative adjudications for substantial evidence.                                                                                                                                                                                                                                                     We therefore conclude that the                                                                                                                            

ALJ's finding that the hiring criteria were not pretext for discrimination is supported by                                                                                                                                                                                                                                                                                                                                                                               

 substantial evidence.                                                                                               

                                                                         The ALJ also discounted the possibility that racial animus might have                                                                                                                                                                                                                                                                                                             

played a part in the panel's decision not to recommend Ross because any one panelist's                                                                                                                                                                                                                                                                                                                                            

prejudices were unlikely to influence the four other panelists.                                                                                                                                                                                                                                                                               The Railroad urges us to                                                                                                      

 adopt this position, arguing that accepting Ross's claim requires finding a conspiracy                                                                                                                                                                                                                                                                                                                            

between panelists to use lack of enthusiasm as a cover for discrimination. But this is not                                                                                                                                                                                                                                                                                                                                                                           

necessarily the case.                                                                                             It is possible that the panel intended to base its recommendation                                                                                                                                                                                                       

 decisions    on    some    combination    of    enthusiasm,    communication,    and    interview  

performance; that it decided not to recommend Ross for discriminatory reasons; and that                                                                                                                                                                                                                                                                                                                                                                            

it then used the criteria as a post-hoc rationalization for its decision.                                                                                                                                                                                                                                                                                                                 Such a scenario      

would not necessitate a conspiracy.  Rudd, whose use of the nickname "Black Magic"   

may be probative of racial prejudice, was the Anchorage terminal superintendent and                                                                                                                                                                                                                                                                                                                                                                               

would have supervised Ross had he been hired as trainmaster. Other panelists may have                                                                                                                                                                                                                                                                                                                                                                        

 deferred to Rudd's judgment on which candidates to recommend; if for discriminatory                                                                                                                                                                                                                                                                                                                   

reasons Rudd decided that Ross should not be recommended, then the rest of the panel                                                                                                                                                                                                                                                                                                                                                                    

may   have   gone   along.    Ross's   non-recommendation   might   have   been   based   on  

 discrimination, even if the majority of the panel had no discriminatory intent.                                                                                                                                                                                                                                                                                                                  

                                                                         Enthusiasm, communication, and interview performance being post-hoc                                                                                                                                                                                                                                                                                          

rationalizations for not selecting Ross finds some support in the fact that, although the                                                                                                                                                                                                                                                                                                                                                                            

Railroad stated it did not hire Ross and three white candidates because of poor interview                                                                                                                                                                                                                                                                                                                                           

performance,   only   interview   notes   for   the   three   white   candidates   clearly   indicated  

                                     22                                   Tesoro Corp. v. State, Dep't of Revenue                                                                                                                                                                               , 312 P.3d 830, 837 (Alaska 2013)                                                                                                                      

 ("In applying [the substantial evidence] standard, we will not . . . re-evaluate the fact                                                                                                                                                                                                                                                                                                                                                                       

 finder's credibility determinations.").                                                                

                                                                                                                                                                                                                                 -20-                                                                                                                                                                                                                        7405

----------------------- Page 21-----------------------


significantly  poor  performance.                       Rudd's  and  another  panelist's  notes  included  


evaluations of candidates' interview performance.  Rudd described one white candidate  


as a "poor interview," another as "not a chance - poor," and the third as "didn't answer  


half  of  our  questions  -  not  a  candidate."                     The  other  panelist  described  one  white  


candidateas"notastrongpersonality";that candidate"criedthroughout [the]interview."  


Yet neither Rudd nor the other panelists made any similarly striking notes about Ross's  


interview performance.  If Ross interviewed so poorly that the panelists decided not to  


recommend himfor that reason, one would expect to find interview notes similar to those  


for the other candidates not hired because of poor interview performance.  Other than  


one panelist's notes that Ross "[d]id not offer a lot of info[,] did not explain in great  


detail on some of the questions," panelists' notes contain no express indication of Ross's  


alleged poor communication or sense of entitlement that they later testified were reasons  


for not recommending him.  


                    Panelists' focus on Ross's desire for a better "high three," both in interview  


notes and testimony, is suspect.  An African-American former employee testified that  


during an interview for a position similar to trainmaster, an interviewer accused him of  


being interested only in earning his "high three."  He testified that the interviewer later  


told him that he should not get the raise that came with the promotion.   Rudd also  


interviewed  that  former  employee  and  may  have  made  a  comment  implying  the  


employee was too lazy for the job, although the employee conceded that someone else  


may have made the comment.  Despite being circumstantial, Rudd's involvement in the  


hiring process for both positions and alleged similar concern about the benefits accruing  


from a promotion - particularly concern about "high three" - suggest that panelists'  


invocation of Ross's sense of entitlement may have been tainted by racial animus.  And  


the Railroad's denial of promotion benefits to African-American employees is supported  


by Ross's testimony that when he became yardmaster an attempt was made to give his  

                                                               -21-                                                         7405

----------------------- Page 22-----------------------

evening-shift differential to a white employee, "because they sa[id] that he was doing  


more [of] the work than I was."  That white employee was Rudd.  


                    4.         Tenure and experience  


                    Ross also argues that the Railroad's decision to leave trainmaster positions  


open rather than hire him, despite his having more years of experience than any other  


candidate and being the only candidate to have served in the allegedly similar yardmaster  


position, demonstrates discriminatory intent. The Railroad responds by citing the ALJ's  


recommendation  that   Ross's   experience   was   not   particularly   relevant   given   the  

differences  between  the  former  yardmaster  and  new  trainmaster  positions  and  the  


trainmaster position's merit-based nature.   The Railroad further stresses that Ross's  


tenure  was  not  significantly  longer  than  that  of  the  four  candidates  selected  for  


Anchorage trainmaster positions.  


                    Although  Ross  had  the  longest  tenure  with  the  Railroad,  it  was  not  


significantly longer than the tenure of other candidates.  Compared to Ross's 36 years  


with the Railroad, most candidates - including those not selected - had worked there  


for 20 to 30 years.  The four candidates hired as Anchorage trainmasters had been with  


the Railroad for a long time - one for 22 years, two for 29 years, and one for 30 years.  


Ample evidence supports the ALJ's findings that the position was merit based and that  


longevity  with  the  Railroad  was  not  a  major  factor  in  the  hiring  decisions.                                     Even  


assuming  Ross's  three  years  in  the  former  yardmaster  position  distinguished  his  


experience, his qualifications were not "clearly superior" to those of other candidates -  


the ALJ found credible the testimony that the new trainmaster and the former yardmaster  


positions differed. The ALJ also found credible the testimony that Ross failed to inform  


the  panel  of  relevant  aspects  of  his  experience  and  how  he  qualified  for  the  new  


trainmaster position.  


                                                               -22-                                                         7405

----------------------- Page 23-----------------------


                             5.	            Absence   of   African-American   employees   in   management  



                             Ross briefly argues that the absence of any African-American managers in  


the transportation division augments the other evidence that the Railroad discriminated  


against him.  The Railroad observes that the ALJ expressly discounted the significance  


of this  fact,  stating that  "[w]ithout more information,  it is impossible to determine  


whether the lack of minority supervisors is an anomaly that suggests discrimination, or  


the result of insufficient minority applicants.   Therefore, the unexplained dearth of  


minority supervisors is of little, if any, probative or persuasive value."  The Railroad  


stresses  that  this  passage  relies  on  U.S.  Supreme  Court  precedent  indicating  the  


importance of statistical comparisons to establishing a pattern of discrimination.  


                             There is some evidence that the absence of minorities in management is  


attributable to discrimination.   Ross testified that when he had been yardmaster, an  


apparently white employee Ross had been training was promoted into a management  


position for which Ross  had applied.  An African-American former employee testified  


to being turned down for a position for racially suspect reasons.  Still, this evidence is  


anecdotal and certainly not determinative.  

                             6.	            Conclusion  

                             UltimatelywereviewtheCommission's decision for substantialsupporting  


evidence in light of the whole record.                                               Given the hiring process and use of subjective                                    

criteria, considered together with Rudd's use of the nickname "Black Magic," Ross's                                                                                           

experience, andanecdotalevidenceofAfrican-Americansbeing                                                                                 deniedother                 managerial  

positions, a fact finder might have determined that intentional or unintentional racial                                                                                          

animus prevented Ross from being hired as a trainmaster.                                                                        But the evidence detracting            

from the Commission's contrary decision is not dramatically disproportionate to the                                                                                                   

                                                                                          -23-	                                                                                   7405

----------------------- Page 24-----------------------


 supporting evidence;                                                                              we cannot conclude that the ALJ's adopted recommendation                                                                                                                                            

necessarily   lacked   substantial   supporting   evidence.     The   ALJ   found   credible   the  

panelists' testimony about why Ross was not recommended, concluding that it likely was                                                                                                                                                                                                                                                                          

not fabricated and was related to the responsibilities of the trainmaster position.                                                                                                                                                                                                                                                                   

                                                         We therefore conclude - based on the appropriate deferential standard of                                                                                                                                                                                                                                       

review - that it was not error for the Commission to determine Ross did not establish                                                                                                                                                                                                                                                      

that the reasons the Railroad offered for not hiring him were pretextual.                                                                                                                                                                                          

V.                           CONCLUSION  

                                                         The  superior  court's  decision  to  uphold  the  Commission's  decision  is  



                             23                          See Local 803                                                , 420 P.3d at 1248 ("The substantial evidence test is highly                                                                                                                                                                  

deferential, but we still review the entire record to ensure that the evidence                                                                                                                                                                                                                                                     detracting  

from   the   agency's   decision   is   not   dramatically   disproportionate   to   the   evidence  

 supporting    it    such    that    we    cannot    'conscientiously'    find   the    evidence    to    be  

 'substantial.' "      (emphasis in original) (quoting                                                                                                                                                    Shea, 267 P.3d at 634 n.40)).                                                                    

                                                                                                                                                                                -24-                                                                                                                                                                        7405

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