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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  

          corrections@akcourts.us.  



                      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  

                    Appellee.  



                                                                                                   

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

                                         

                     and Carney, Justices.  



                                         

                    WINFREE, Justice.  



I.        INTRODUCTION  



                                                                                                                                   

                    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  


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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.  



                                 

II.       FACTS AND PROCEEDINGS  



          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
  


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

                                                                                                                               

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
  


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

                                                                                                                        1  

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



                                                         2  

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
  


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

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



                                                                     4  

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  

                                                                                                                                      



                                                                                                                                          9  

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  



(1981)).  



           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),  

                                                                                                                      

                                                                                                                      (continued...)  



                                                                    -7-                                                             7405
  


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

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  

credence."                                                                                                                                                                                                



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  

discrimination.                                                                                                                                                                                                                                                                                                                                                                            



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  



                                                                                                                                                                                                                     13  

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



                                                                                                                                                                             14  

                                                                                                                                                                                      

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



                                                                                                                                                                                                   

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



                                                                                                    15  

                                                                                                                                                                                                       

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  



IV.       DISCUSSION  



                                                                     

          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  



          17  

intent.                                                                                                                  

              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  



                                                                18  

                                                       

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  

 discrimination.                                                                                                                                                                                                                                                                                                                                                       



 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  



                         21  

discrimination."                                                                                                         

                            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  



                  

position?"  



                                                                                                                                

                    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  



          21  

                                                                                                                             

                    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-----------------------

                                                                                                                                                                                                                                                                                                  22  

 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  

                                            positions  



                                                                                                                                                                                         

                             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-----------------------

                                                                                           23  

 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  

                                                                                                                                                                                                                                                                                                                                                                       



AFFIRMED.  



                             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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