Alaska Employment Law

ELS Materials:  All the materials to be discussed at Wednesday’s Employment Law Section meeting may be found here.  The issues are 1) disqualification of defense counsel who had acted as internal investigator; and 2) availability of a cause of action for public policy/retaliation when the adverse action is less severe than discharge.

Alaskan blawgers:  At Alaska Law Blog, Jerome Juday discusses his Top Five law-related events of 2008.

Singleton on IDEA:  Local U. S. District Judge James Singleton sat on a 9th Circuit panel that today unanimously affirmed an ALJ’s finding that a school district had not violated the federal Individuals with Disabilities Education Act.  B.S. v. Placentia-Yorba Linda Unified Sch. Dist., 2009 WL _______ (9th Cir. Jan. 5, 2009)(unpub.).

This from Superior Court Judge Douglas Blankenship, President Judge for the 4th Judicial District:

The discount rate in effect on January 2, 2009, in the 12th Federal Reserve District is .50%.  Therefore, under AS 09.30.070(a), the interest rate on judgments entered in 2009 will be 3.50 % (both pre- and post-judgment).  Exceptions:  This rate does not apply if:

1.         there is a contract that sets a different rate,

2.         there is a statute that sets a different rate, or

3.         the cause of action accrued before August 7, 1997 (in which case the interest rate will be 10.5%).

The court system website at http://www.state.ak.us/courts/int.htm contains information concerning how to determine pre and post judgment interest rates for the 2009 calendar year.

Amsterdam, by Ian McEwan - Though I recently raved about McEwan in my reviews of The Innocent and On Chesil Beach, I am sorry to say that I thought Amsterdam was a real stinker.  And it won the Booker Prize in England, so go figure.  In Amsterdam, two old friends, one a renowned composer of classical music and one a publisher, meet at the funeral of a woman they both had loved.  (Her husband is there too, of course.)  Most of the plot turns on the publisher’s decision to print photographs that have unexpectedly come to his attention, showing an important political figure, reviled by both of the friends, in a highly compromised situation.  However, the two men fiercely disagree on whether the photographs should be published.  Things play out, morals are paraded around the room, and the two friends eventually meet in Amsterdam, where the plot goes deus ex machina, or, maybe it would be better to say in modern parlance, shark ex machina.  A completely unsatisfying, completely not believable ending, in my opinion.  Avoid.

Milk, starring Sean Penn - The story of Harvey Milk, the first openly gay man elected to significant political office in the United States, is well known.  Milk, a San Francisco city supervisor, was assassinated in 1978 along with the mayor of the city, George Moscone. Sean Penn is stupendous in this film - an absolutely compelling, convincing Harvey Milk.  The portrait of the Castro District in the early 1970s is really effective.  Some minor characters are not as well drawn out as I might have hoped, particularly Milk’s killer, Dan White, who is known in the annals of law for mounting (with some success) the “Twinkie defense” to the charges of murder against him.  I thought this was a great movie; my wife thought it was a bit drawn out, but I disagree.  This is an especially significant film in the wake of the passage in November of Proposition 8 in California.  By the way, you might want to brush up on the plot of Puccini’s Tosca before you go - but go!

In an unpublished memorandum decision, the Alaska Supreme Court reversed Anchorage Superior Court Judge William Morse, and held that a State employee had, in fact, exhausted her grievance remedies under the APEA union contract.  The Court remanded the implied covenant claim to Morse for a determination of whether the employment contract was void because of misrepresentations on the application form.  The Court affirmed Morse’s holding that the employee failed to state a prima facie race case under Title 18.

Crowley v. State, DHSS, Op. No. 1323 (Alaska Dec. 24, 2008).

Joe Josephson of Anchorage represents the employee; Joan Wilkerson, Juneau AAG, represents the State.

Roston on the Holidays:  At Alaska Divorce Law, Anchorage practitioner Peggy Roston posts on how to make the Holidays enjoyable for children of divorce.

Vollertsen on preemption:  At Alaska Injury Law, Richard Vollertsen posts on the U. S. Supreme Court’s recent anti-preemption opinion, Altria Group v. Good. 

Holland on the Rule of Mandate:  A 9th Circuit panel that included Alaska District Judge Russel Holland has held that a District Court judge violated the “Rule of Mandate.”  Alberni v. Del Papa, 2008 WL _______ (9th Cir.  Dec. 22, 2008)(unpub.)

Singleton on  Sherman Act claims: Another panel that included Alaska District Judge James Singleton has affirmed a District Court holding of failure to state a claim for monopolization and attempted monopolization under § 2 of the Sherman Act.  LiveUniverse, Inc. v. MySpace, Inc., 2008 WL _______ (9th Cir. Dec. 22, 2008)(unpub.)

Roberts on time calculation:  Magistrate Judge John Roberts has published an opinion on the correct calculation of the opposition due date under a scheduling order in a criminal case.  U. S. v. Turner, 2008 WL 5263432 (D.Alaska Dec. 17, 2008).  Erin White, Anchorage AUSA, prosecutes.  Michael Dieni, Anchorage Federal Public Defender, defends.

In a lengthy published opinion, U. S. District Judge John Sedwick has denied summary judgment to State Farm on a claim by a life insurance beneficiary that State Farm failed to comply with the insured’s (uncontested) instructions to redesignate the beneficiary on the policy after the insured and the beneficiary divorced. 

Sedwick framed these issues:

(1) whether State Farm or [its agent] Campbell acted in bad faith or owed and breached a professional duty to Jane, as a third-party beneficiary of John’s policy, when Campbell failed to revise John’s policy after he expressed his intent to maintain Jane as primary beneficiary following their divorce; (2) whether State Farm’s interpleader constituted breach of contract or was filed in bad faith; (3) whether State Farm or Campbell’s actions caused Jane to be deprived of the entirety of the policy proceeds; and (4) whether Jane waived or should be estopped from asserting claims against State Farm because she settled with her daughters.

State Farm Life Ins. Co. v. Davis, 2008 WL 5245332 (D.Alaska Dec. 17, 2008)

State Farm is represented by James Wilkins of Bliss, Wilkins & Clayton.  The various defendants are represented by Michael Cohn of Weidner & Associates; Michael Corey of Sandberg, Wuesterfeld & Corey; and Douglas Johnson.  All counsel practice in Anchorage.

” . . . Tristano did not see his children again until 1976.”

Eunmi Shim, Lennie Tristano: His Life in Music (2007), p. 102.

The Alcoholic, by Jonathan Ames with illustration by Dean Haspiel, is an enormously effective and quite serious graphic novel about the tribulations and growth of the character Jonathan A., a name that suggests that the book is semi-autobiographical.  It’s told in a sort of memoir style.  Jonathan has issues with isolation, with alienation, with his relationships, and with his sense that it’s all meaningless, and he usually attempts to solve his problems with drink and drugs.  He lives through 9-11.  Yet, he soldiers on, still looking for goodness and finding it in odd places, including in his relationship with his great aunt in New York City.  Much praise to the crisp and highly emotive drawings of Dean Haspiel, who has supplied the art for another great graphic series, which I will get to in a moment.  One word of caution:  this is really a “graphic” graphic novel.  It pulls no punches.  I recommend it.

Dean Haspiel has also collaborated with Harvey Pekar, who writes the storyline for the American Splendor comics, which I have not read in a while but recall fondly.  Mr. Pekar does not live a splendid life (he’s from Cleveland, and he writes about Cleveland), but he reveals it, with all its numbing familiarities to ours, in the American Splendor books.  The way to read Harvey Pekar so to buy American Splendor: The Life and Times of Harvey Pekar, a double anthology with illustrations by, among others, the redoubtable Robert Crumb.  Highly recommended.  (Mr. Pekar’s tales were also made into a fine film.)

After all this brutalism, I thought okay, time to read some Charles Bukowski, whose books I had never gone near.  So I read Post Office, and I hated it.  Yes, working at the Post Office is numbing, and it’s a job full of petty administrators and even pettier rules (I worked at the Post Office in 1966 and 1967, and I still remember).  But I can hardly think of a less introspective writer than Bukowski, whose life seems to be motivated solely by booze, dope, money, and sex.  Many readers of Bukowski’s novels claim to find them funny.  Ha. Ha.

The Alaska Supreme Court has unanimously held that an arbitrator didn’t commit “gross error” in awarding pre-judgment interest on a back pay award against the State, under the Public Employment Relations Act.  The Court reasoned that the interest in effective arbitration overrode the requirement of express waiver of sovereign immunity, especially where the State had already agreed to arbitration.

In the course of so holding, the Court clarified that the standard of review dictum in PSEA v. State, 895 P.2d 980 (Alaska 1995), is correct: judicial review of PERA grievance arbitration is governed by the “gross error” rather than the (less deferential) “arbitrary and capricious” standard.  Opinion at Footnote 10.  

State v. APEA, Op. No. 6330 (Alaska Dec. 19, 2008)

Chief Justice Fabe didn’t participate.

William Milks, Juneau AAG, represented the State.  Sarah Josephson of JDO represented APEA.

Sedwick on recusal:  U. S. District Judge John Sedwick has denied a criminal defendant’s motion that he recuse himself because his earlier judicial ruling permitted the prosecutor to file a late motion for sentence enhancement.  Sedwick noted: “The Supreme Court has recognized that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.’”  U.S. v. Potts, 2008 WL 5225818 (D.Alaska Dec. 12, 2008)

Singleton on withdrawal of guilty plea:  U. S. District Judge James Singleton served on a Court of Appeals panel that affirmed the denial of a criminal defendant’s attempt to withdraw a guilty plea.  The defendant was a doctor accused of health care fraud.  U. S. v. Hubbard, 2008 WL _______ (9th Cir. Dec. 18, 2008(unpub.)

U. S. District Judge Ralph Beistline has dismissed as “premature” the employees’ motion to disqualify defense counsel because he had conducted the internal investigation that preceded their lawsuit. 

Beistline ruled:

The Court agrees with Defendants that it is premature, under Alaska Rule of Professional Conduct 3.7, to require Mr. Evans to recuse himself. The rule clearly states that an attorney cannot act as an advocate at trial when he is a necessary witness. This matter is still in the discovery process. However, the Court also agrees that Defendants should not be permitted to stall this matter at a later date because Mr. Evans must recuse himself just prior to trial. Given that counsel for the City of Fairbanks has expressed a willingness to represent all Defendants in that circumstance, unnecessary delay at a later date is unlikely.

Accordingly, the Motion to Disqualify Joe Evans is DENIED without prejudice.

The motion practice may be found here.

This issue will be the subject of the January 7, 2009, meeting of the Employment Law Section of the Alaska Bar Association.  All counsel will participate in the discussion.

Order re Disqualification

Hutton v. City of Fairbanks, 4:08-cv-00029 RB (D.Alaska 12/17/08 Order)

Linda Johnson of Clapp Peterson in Anchorage represents the employees. Joe Evans of Bremerton, Washington, represents the individual supervisor-defendants. Howard Trickey and Matthew Singer of Jermain Dunnagan represent the City employer.

Introduction

Everyone enjoys a party, and we are now entering the season for parties.  Good parties require planning.   For employers, that planning should include evaluating common risks and potential liability issues.  This summary briefly reviews some of the more common risks related to holiday parties, and offers a few recommendations to help all enjoy a safe and happy holiday season.

Major Liability Risks for Employers

Should employers serve alcohol?  Alaska confers social host immunity on hosts who furnish alcohol to guests.  See AS 04.21.020.  A social host is a person that does not have liquor license.  Social hosts are not civilly liable for injuries resulting from another person’s intoxication just because the host provided alcohol to the person who caused the injuries.  Employers are treated no differently than any other person.  This means that employers may not be held liable for the simple act of providing alcohol. See Mulvihill v. Union Oil Co. of California, 859 P.2d 1310, 1312 (Alaska 1993).  In Mulvihill, an employee was killed in an early morning car crash after an employer’s holiday party.  He had been dropped off at his home by co-employees. He then got in his car and attempted to drive to Anchorage from the Kenai area to see his fiancée.  The Estates of the persons killed in the crash argued that Unocal was liable.  The superior court applied the social host statute and granted Unocal summary judgment.  The Alaska Supreme Court affirmed.  The Court held that Unocal was a social host no different than any other person or individual, and that it was therefore immune from liability.

However, although an employer cannot be liable simply for providing alcohol, that does not mean that an employer could never be liable under any circumstances.  Instead, employers may still face negligence claims based on theories independent from providing alcohol.  For example, in Gordon v. Alaska Pacific Bancorporation, 753 P.2d 721 (Alaska 1988), the plaintiff was injured in a fight at a company-sponsored party. Id. at 722.  The employer argued that it was not liable because it was merely a social host and the fight was alcohol-related.  Id.The superior court agreed and granted the employer summary judgment.  The Alaska Supreme Court reversed.  The Court held that the social host statute provided no immunity because the plaintiff’s claim was that the employer was liable for failing to provide adequate security. 
Id.at 723.  The Court observed: 

The jury could find a duty to anticipate outbreaks of violence on the following facts.  There was a large crowd of people to whom large quantities of free liquor were given.  No effort was made to limit dispensation of alcohol to those apparently sober.  One of the activities was a dance, where jealousies, proposals for sexual transactions, and social slights might play a motivational role.

It necessarily followed that there was a genuine issue of material fact concerning whether or not the employer provided adequate security.  

It is also still theoretically possible for an employer to be held liable under a respondeat superior theory in rare cases.  Respondeat superior is a theory of liability under which employers are liable for the negligent acts of their employees that are undertaken in the course and scope of employment.  There are two potential theories of liability.  The “control” theory applies when the employee’s act was undertaken at the employer’s request or under the employer’s express or implied authority.  The “enterprise” theory applies when the employee’s act was undertaken for the employer’s benefit. Alaska has not squarely rejected respondeat superior theories in the context of holiday parties. 

The Alaska Supreme Court held that respondeat superior could not apply in Mulvihill because the employee’s act in driving to Anchorage to see his fiancée hours after the party (and after he had been dropped off at his home) did not fit either the control or enterprise theories.  However, the Court did not hold that such liability could never be imposed as a matter of law.  Although it is rare for employers to have liability imposed in the holiday party context, it has happened.  See Harris v. Trojan Fireworks Co., 120 Cal.App.3d 157 (1981); Wong Leong v. Hawaiian Independent Refinery, Inc., 76 Haw. 433 (1994); Dickinson v. Edwards, 105 Wn.2d 457, 468-69 (1986).   Courts imposing liability under a respondeat superior theory for injuries related to a holiday party have done so where attendance at the party was required or expected, the employer derived some benefit from the party (such as when customers or clients are present), and the alcohol-related accident had some connection to the employer’s business interests.  

As one might imagine, sexual harassment claims can arise from office holiday parties.  Usually a one-time problem (for example an unwelcome kiss at a holiday party) would not be sufficient to establish conduct that is severe or pervasive enough to alter the terms and conditions of employment, and therefore not enough to sustain a sexual harassment claim. However, if the unwanted conduct rises to the level of groping (something that fits the definition of an assault), a different result could follow.  Moreover, even if a sexual harassment claim is defensible, the employer still incurs needless fees and costs.

Workers’ compensation claims may also be linked to an employer’s social events, including of course office parties.  This is not a common risk, but it can happen in some jurisdictions.  Where courts have recognized workers’ compensation claims related to holiday parties, there has usually been some work-related connection such as required attendance, benefit to the employer, a party held on the employer’s premises, and employer participation or sponsorship, to name some relevant factors or considerations.  See Kim v. Sportswear, 10 Va. App. 460 (1990).   In Alaska no compensation is paid for a claim based proximately caused by an injured employee’s own intoxication.  See AS 23.20.235(2).   However, the concept of an activity “arising out of and in the course of employment” is sufficiently broad enough to support a claim includes employer-sanctioned activities at employer-provided facilities.  See AS 23.30.395(2).  

Finally, employers should be sensitive to religious-based messages that could be misinterpreted or that could cause needless friction in the workplace. Successful employers tend to draw upon a diverse workforce.  Holidays can accentuate differences or, conversely, emphasize unity.  Employers who seize upon the occasion to emphasize unifying themes are better at promoting workplace harmony and productivity. 

These are not the only risks that are related to holiday parties, but do seem to reflect some of the more common liability issues that employers face.   
 

Tips from the USDOL and Others

The United States Department of Labor and other private and public organizations offer a wide range of tips for employers that are planning holiday parties.  Here is a brief list of recommendations condensed from these sources:

Hold the party off work premises and during non-working hours.

Have a licensed caterer handle food and beverage. 

Make sure that the caterer has TAMS or TIPS trained servers who will not serve underage or intoxicated persons, and who can detect signs and symptoms of intoxication.  

If alcohol is provided, consider avoiding an open bar and instead providing a cash bar or offer tickets for a limited number of free drinks (for example, two tickets).

Do not invite clients or customers.

Make sure that everyone knows that attendance is voluntary.

Consider arranging for alternative transportation. 

Reward designated drivers.

Check your insurance policies. 

Provide brief and polite reminders beforehand to all employees concerning appropriate conduct at holiday parties (“Let’s have a good time, but drink and act responsibly”).

Consider use of managers or supervisors to “chaperone” the event. This can be done in an informal manner.

Consider adopting a Social and Business Responsibility Conduct policy.

In addition to this condensed list, there are numerous holiday party tips and suggestions available for employers on-line.  Try searching “employer tips holiday party” for different websites. 

As with any other policy-related issue, be sure and check your existing employment manual to make sure that any action you take is consistent with your existing policies, and confer with counsel (in-house counsel or retained outside counsel) before implementing any policy changes or other guidelines.  

U. S. District Court Rules: New rules apply to the District of Alaska, as of December 1st.  Significant changes to the civil rules include: (1) adding (e) to Local Rule 5.1, restricting the instances for filing documents under seal; (2) adding Local Rule 7.1(f)(2) to require the motion caption to include the authority for the motion and the relief sought; and (3) adding Local Rule 7.1(k) to bar the consolidation of motions in a single document (except motions in the alternative).   The preliminary draft of the rules contains a summary of the changes.

USERRA jurisdiction: The employee in Townsend v. University of Alaska, 543 F.3d 478 (9th Cir. 2008), has filed a petition for certiorari.  The issue is whether federal courts have jurisdiction over USERRA claims filed against state employers.  The Ninth Circuit affirmed Judge Burgess’ holding that that state courts have exclusive jurisdiction over those claims.  (Disclosure: Mark Ashburn and I represent the University).

Alaskan blawgs: Jerome Juday has more on limitation of liability clauses and on tribal sovereignty, including a correction of my sloppy reading of his earlier post on sovereignty.

Social Security Disability:  The 9th Circuit has affirmed Judge Ralph Beistline’s ruling that Social Security Ruling 83-20 does not require a medical expert where the ALJ explicitly finds that the claimant has never been disabled.  Paul Eaglin of Fairbanks represented the applicant.   Terry Shea  of the Seattle regional office of the SSA represented the agency.  Sam v. Astrue, ___ F.3d. ___ (9th Cir. Dec. 15, 2008).

When you go to a rock concert, typically there is some music playing on the PA system as people mill around, or try to find their seats, or just wish they’d had a cigarette before they came in.  It’s background music designed to set the mood a little bit.

When my wife and I sat down in our mezzanine seats at the Huntington Theatre on Saturday, happily anticipating Tom Stoppard’s play Rock’n’Roll, music was playing on the PA, just like it does before a rock concert.  The crowd was a lot older, though.  I mean, a lot older.  Hell, I’m a lot older.  Anyway, the PA played some Syd Barrett (a founder of Pink Floyd, in case you missed it), and then Mick Jagger sang “It’s Only Rock’n’Roll (But I Like It)” — pleasant enough fare.  And then, about 8 minutes before curtain (“curtain” being a euphemism for “friendly but authoritarian instruction to shut off your cell phone and pager”), to my shock and delight, the song that came on was “Sister Ray” by The Velvet Underground.  Now, most people would not like “Sister Ray,” which is 17+ minutes of guitar and organ chaos somehow held together by Mo Tucker’s metronomic drumming; and the theme of this song, and some of the lyrics - well, they’re pretty pornographic, to be blunt.  So I said to my wife, they must be gonna edit this, they can’t just play it.  But they played it!  Well, about 13 minutes of it, and then the curtain rose.  And I was looking around the theatre thinking, hey, no one is even noticing this music.  What kind of play is this?

Well, the answer was, not a very good play, in our estimation, and we left at intermission and had a pizza.

Since I find it too boring to recount, I will borrow from Jim Sullivan’s plot summary in his online review, repeated here:

The play?  Set in both Cambridge, England and Prague, it revolves around the clash in Czechoslovakia, the adamant communist arguments of the professor Max (Jack Willis), the way Jan (Manoel Felciano) mixes music and politics, and engages with Max and the others.  It’s about freedom and restriction, human rights, love, maturity, the inevitability of change and how people change.  One theme that emerges is how rock ‘n’ roll, the best of it anyway, symbolizes dissidence and freedom throughout the whole play.  At the end of the first act, when Jan comes home from prison and finds the police have shattered his beloved record collection, he says “It’s only rock ‘n’ roll.”  Free from prison, but how free?

Or, as my dog always used to think I was saying, Blah Blah Blah.
It’s true that rock’n’roll can be great, spiritually uplifting music; I am the first to agree.  And it’s true that a band called Plastic People of the Universe was suppressed in Czechoslovakia by the Soviets. The Plastics, who played with fervor if not skill (kinda like the punks), were indeed a symbol of the move to freedom and independence in that country.  In point of fact, they were revered.  (Their music doesn’t do much for me, but that’s not the point.)  Many found it uplifting in a new way, as they also found Syd Barrett’s music energizing in the play.  But while I can get really excited about great music, I just could not care about the character Jan’s love for the Plastics and the rest.  To me Jan’s love for his music collection — he even has a Fugs album — was no credible substitute for the movement toward spiritual and political freedom that the play is supposed to be about.  Great sets, though.

In the end, too much talking, not enough engaging.  It’s hard to enjoy a play without feeling at least one actor’s hand on your heart.

Skip the play.  “Sister Ray” is on White Light White Heat(1968) by the Velvets.  It was recorded in one take for the album.  In concert it often ran over 30 minutes.  But it’s only Rock’n’Roll.

Introduction

Does a plaintiff have to present direct evidence of discrimination in order to obtain a mixed-motive instruction in an age discrimination case? On Friday December 5, 2008, the United States Supreme Court granted certiorari to resolve this issue in Gross v. FBL Financial Services, Inc., 526 F.3d 356 (8th Cir. 2008), a case from the Eighth Circuit. This summary briefly reviews the case and relevant principles.

The Case

Jack Gross filed an age discrimination suit against his employer FBL Financial Services, Inc. after he was demoted. The district court gave a mixed motive instruction to the jury that had the effect of shifting the burden of proof to FBL Financial. Although there was no direct evidence of discrimination, the district court concluded that it could give a mixed motive instruction because there was ample circumstantial evidence that FBL Financial had engaged in intentional discrimination. The jury awarded Gross about $50,000 in damages. FBL Financial appealed, arguing that, in anything other than a Title VII case, a mixed motive instruction could only be given if there was direct evidence of discrimination.

The lower court’s opinion

The United States Court of Appeals for the Eighth Circuit agreed with FBL Financial and reversed. The court recognized that the United States Supreme Court held in Desert Palace Inc. v. Costa, 539 U.S. 90 (2003) that, in a Title VII case, direct evidence was not a necessary precondition to securing a mixed motive instruction. This is because the Civil Rights Act of 1991 amended Title VII (specifically 42 U.S.C. 2000e-2(m)) to provide that a mixed motive instruction was allowed when a plaintiff could show that an impermissible purpose was a motivating factor for an aggrieved decision. However, the court reasoned that the Civil Rights Act of 1991 only amended Title VII in this regard. Congress made no attempt to amend the Age Discrimination in Employment Act at the same time. Therefore, the court concluded that Justice O’Connor’s concurring opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) still controlled, and under Price Waterhouse direct evidence would be required before a mixed motive instruction could be issued. The court’s holding seems to conflict with a Fifth Circuit case, Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312-13 (5th Cir. 2004). Gross sought certiorari and the United States Supreme Court accepted review on December 5, 2008.

Review of Basic Principles

In a “basic” disparate treatment employment discrimination case, the McDonnell Douglas burden shifting test is used. The plaintiff must first establish the existence of a prima facie case. Once this is done, the burden of production (but not the burden of proof) shifts to the employer to come forward with sufficient evidence to show that its decision was based on a legitimate, non-discriminatory reason. If the employer makes this showing, the burden of production then shifts back to the plaintiff to show that the employer’s stated reason is pretextual. Although the burden of production shifts, the burden of proof always remains with the plaintiff.

In a mixed motive case, however, if the plaintiff can show that an impermissible discriminatory motive was a motivating factor for the decision or action being challenged, then the burden of proof shifts to the employer to show that it would have reached the same decision or taken the same action regardless of the existence of an impermissible discriminatory motive. At one time, in the context of Title VII cases, this required direct evidence of discrimination. This principle was based on Justice O’Connor’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 28 (1989)—a concurring opinion in this plurality case that most courts have interpreted as reflecting the Court’s holding in Price Waterhouse. Congress amended Title VII (and other acts) by the Civil Rights Act of 1991, and in the specific context of mixed motive cases, Congress instructed that in Title VII cases it was only necessary to show that an impermissible motive was a motivating factor for a challenged decision. However, Congress did not amend the ADEA at the same time.

Prediction

I am never reluctant to offer a prediction—not for purposes of being “right” or “wrong” but instead for purposes of analyzing existing trends—but this is one of these cases that will required more layered analysis beginning with the merits briefing, and the merits briefing will not be filed for a few weeks. Consequently, for the time being, I will defer any forecast. What can be said, however, is that this is one of those rare cases that will turn on both canons of statutory construction and principles of interpreting court precedent. Desert Palace was based on a plain meaning approach to Title VII—the statute meant what it said and (as amended by the Civil Rights Act of 1991) it does not require direct evidence to secure a mixed motive instruction. The statute’s clear terms dictated the result. It would be ironic if the plain meaning approach of Desert Palace could be extended to apply its result to another statute (the ADEA) that did not include a similar provision. Moreover, the fact that Congress did not also amend the ADEA at the same time that it amended Title VII reflects legislative intent that pre-existing law should govern the ADEA. This is a textualist approach that Justices Scalia and Thomas will likely support, and I believe Chief Justice Roberts, Justice Alito, and Justice Kennedy will join their analysis.

There is therefore a good chance that the outcome here may hinge on how one should interpret Price Waterhouse. What was “the pre-existing law” as represented by Price Waterhouse? Most courts and commentators have interpreted Justice O’Connor’s concurring opinion in Price Waterhouse as representing the Court’s holding under the basic principle that, where there is no clear majority, the rule of law governing a case is based on the narrowest grounds presented by concurring opinions. See Marks v. United States, 430 U.S. 188, 193 (1973). Most courts and commentators have concluded that Justice O’Connor’s concurring opinion in Price Waterhouse represented the narrowest grounds upon which the plurality opinion was based. However, there is room for doubt, and no one has ever satisfactorily interpreted the impossibly fractured Price Waterhouse opinion.

Significance?

For students of the Court, this case will reflect a fascinating bridge from pre-CRA 1991 reasoning to the present and an interesting test of competing interpretative principles. For employers, this may seem like arguing about so many angels on the head of a pin, but it actually has some fairly serious ramifications. It is fairly easy to distinguish between direct and indirect (or circumstantial) evidence of discrimination, and to explain that distinction to lay persons. Since Desert Palace, it is understood that direct evidence is no longer necessary to secure a mixed motive instruction in a Title VII case, but it has been the rare reported case that has issued a mixed motive instruction on less than direct evidence, or at least fairly overwhelming circumstantial evidence. If, however, the Court uses this case to refashion existing tests, it may be that the law may evolve to where a motivating factor can be shown based on the same circumstantial evidence used to establish a prima facie case under McDonnell Douglas, in which case we may find that this long-established test becomes largely superseded. If the Court affirms, it would not be surprising to see a Democratic Congress and Administration enact new legislation to extend Desert Palace’s reasoning to other federal remedial statutes.

Conclusion

I will try to update this summary with a prediction after the merits briefing is filed. This legal summary is for informational purposes and is not intended as legal advice. Employers with questions or seeking additional information should confer with counsel.

ANCSA immunity:  A recent 9th Circuit opinion prompts Jerome Juday to discuss waiver of tribal sovereign immunity when doing business with Alaska Native corporations.  At Atkinson Conway’s Alaska Legal Blog.  12/13/08 correction: Juday points out that he was discussing tribes, not ANCSA corporations.

Public policy, retaliation, and attorney disqualification:  The January 7th meeting of the Employment Law Section of the Alaska Bar Assocation will feature a panel discussing issues in Hutton v. City of Fairbanks, pending before U. S. District Judge Ralph Beistline.  Attorneys Linda Johnson (for plaintiff) and Joe Evans and Matt Singer (defendants) will discuss disqualification of defense counsel where counsel conducted an internal investigation of the underlying claims, and the availability under Alaska law of claims of retaliation and public policy where the alleged retaliation/discipline is less than termination.  See earlier AEL postings on claims and disqualification for links to relevant pleadings.

Perhaps known best for his novel Atonement (2001), Ian McKewan, a wonderful writer, won the Booker Prize for Amsterdam (1998), though most critics consider that award to be sort of a “make-up” prize for not getting the Booker even earlier in his career. His latest is On Chesil Beach (2007), a horribly sad little story about the wedding night, and what preceded it and what followed it, of Edward Mayhew and Florence Ponting, a young, just married English couple dutifully honeymooning in Dorset. Set in a summer evening in 1962 – a perfectly dreadful time, really, a time belonging more to the ‘50s than the ‘60s – On Chesil Beach explores the couple’s perceptions of each other over the course of this signal night. These turn out to be misperceptions of each other, informed in some measure by their own family histories: Edward’s father is a teacher and his mother is brain-damaged; Florence’s father is a rich industrialist, her mother a bloodless Oxford philosophy lecturer. The ability, one might say the casuistry, of the lovers as each projects onto his beloved the traits he wishes to see, is both plausible and frightening. In the end, Florence sees a way out of their dilemma, yet Edward cannot accept her idea. Years later, he realizes how he may have been wrong. He sees the cost of his certainty.

While it starts out as a Cold War thriller, The Innocent (1990) is, in its own way, as much of a romantic horror story as Chesil Beach. It’s 1955 or so, and Leonard Marnham, an English Post Office engineer, arrives in occupied Berlin to help with a joint CIA/MI6 espionage project that involves constructing a secret tunnel from the American sector to a location under the Russian sector of the city, there to tap into the underground telephone cable that runs from Berlin to the Soviet High Command. McKewan expertly recreates the paranoia of those times, in part by showing us the tension of life above-ground in each of the occupied sectors of the city. One night, Leonard goes out drinking with a couple of Americans from this secret project, and in a vast and wretched hotel lounge he meets a divorced German woman, Maria Eckdorf, who at 30 is five years older than Leonard. Like Edward Mayhew in Chesil Beach, Leonard is a virgin when our story begins, but he falls hard for Maria and they commence a passionate love affair, which in turn worries his American supervisors that he will spill the beans about the tunnel. In the midst of their affair, Leonard makes a terrible miscalculation, and he and Maria have a falling out. When they meet again some weeks later, Maria’s German ex-husband Otto, a drunken veteran of WW2, has confronted her and beaten her. It is at this point the book shifts gears rather violently, as Leonard cannot avoid dealing with Otto, a vicious, unhappy man. What transpires next is almost black comedy, but you can’t put The Innocent down – the story is horrible and compelling. At the end of the book, Marnham must try, years later, to understand what happened – just as Edward Mayhew must do in Chesil Beach. Ian McKewan will be a treat for you to read if you have not discovered him already.

Today’s meeting of the Alaska Bar Association’s Employment Law Section addressed 13 questions submitted by members.  Here are the “Stump the Employment Law Section Questions.”  A couple of thoughts:

Stating reasons for dismissal of at-will employees: I was surprised at the defense bar sentiment in favor of having employers provide at-will employees with reasons for dismissal.  Rationales were: 1) the employer will eventually have to provide a reason in response to a separation questionaire from the Division of Employment Security (unemployment); 2) if the employee later alleges discrimination, an early statement of reasons will help the employer avoid a claim of fabrication; and 3) providing real-time reasons will reduce employee suspicion.   

Reducing ex-employee claims of defamation:  Employers could insist the ex-employee provide a release, with a hold harmless/indemnification provision, and also rely on AS 09.65.160 (”Immunity for good faith disclosures of job performance information”).  But that still leaves the employer on the hook for allegations of bad faith.   If the employer feels obligated to provide a letter of reference (e.g., wants to assist the inquiring employer), it could send the reference letter to the ex-employee, and advise the inquiring employer to contact the ex-employee for the letter.  If the ex-employee sends on the letter (after reading it), hasn’t the employee effectively immunized the former employer via defenses such as waiver, intervening cause, assumption of risk, and contributory negligence?

A visiting federal judge (Robert Bryan, from Tacoma, Washington) has dismissed a legal malpractice claim filed by a convicted felon (threatening a federal judge) against his court-appointed counsel on the appeal from his dismissed habeas claim.  The judge held that, under Alaska law, the same prerequisite applies to claims of post-conviction malpractice as applies to claims of malpratice during the underlying criminal case - success in obtaining post-conviction relief, i.e., reversal of the criminal conviction.   Without such success, collateral estoppel bars recovery.

The court also held that court-appointed counsel is not a “state actor” for purposes of a Section 1983 claim.

Long v. Darmer, 2008 WL 5000160 (D.Alaska Nov. 19, 2008)

The defendant-attorney is Roman Darmer, from Irvine, California.

The late Stieg Larsson brings us a trilogy of mysteries – this is book the first – involving Mikael Blomkvist, a middle-aged journalist and publisher of Millennium, a Mother Jones-type magazine based in Stockholm, and Lisbeth Salander, a punkish, occasionally violent woman in her 20s who is a genius computer hacker when she is not being utterly antisocial. Trust me, you’ll get to like this girl. This smashingly good book opens with a mystery about pressed flowers, then abruptly turns to a court case brought against Millennium by Swedish industrialist Hans-Erik Wennerström, in consequence of which Mr. Blomkvist has been found guilty of criminal libel and sentenced to 90 days in prison.

Before doing his time, Blomkvist is engaged by Henrik Vanger, the elderly, well-to-do CEO of a declining manufacturing company, to try to solve a family mystery. It seems that Henrik’s grand-niece Harriet vanished 40 years previously at age 16. Henrik, and the police, believe that she was murdered, but the case has gone bitter cold with no suspect. Under the guise of writing a Vanger family history for Henrik (warning: the Vangers are an exceedingly unpleasant family), Blomkvist sets about to discover Harriet’s fate.

Not to give away the plot, but it’s worth noting that the original title of this book in Sweden was Män Som Hatar Kvinnor, which, in case your Swedish is as good as mine is, means Men Who Hate Women. The mystery of Harriet is resolved before the book ends; the coda, in which Wennerström’s history is revealed, is a bit of an anti-climax, but it leads to emotional complexities between Blomkvist and Salander that scream for a sequel. And no doubt a sequel, book the second of the Millennium Trilogy, will be translated and published soon. The sooner the better.

The 9th Circuit has reversed Judge John Sedwick’s exclusionary ruling in the criminal prosecution of Juneau attorney, and State Representative, Bruce Weyhrauch.

We hold that 18 U.S.C. § 1346 establishes a uniform standard for “honest services” that governs every public official and that the government does not need to prove an independent violation of state law to sustain an honest services fraud conviction. Because the district court excluded the evidence based, in part, on its conclusion that the government had to prove that state law imposed an affirmative duty on Weyhrauch to disclose a conflict of interest, we reverse. The government did not appeal the district court’s ruling that the proffered evidence relates only to state law, and we express no opinion whether the proffered evidence is relevant to proving the government’s case under the standard we have announced and leave that determination to the district court’s sound judgment.

U. S. v. Weyhrauch, 2008 WL ________ (9th Cir. Nov. 26, 2008)

The December 3rd meeting of the Alaska Employment Law Section will address “Questions I’ve Always Wondered About, and Questions I’m Embarrassed Not to Know The Answer To – a/k/a Stump The Employment Law Section.”

Submit your questions to the Bar Association before the meeting.  Anonymity guaranteed.  Write to JoAnne Baker here: bakerj@Alaskabar.org

Peggy Roston, at Alaska Divorce Blog, writes about the ADR device known as “collaborative practice,” and about an on-line program called “MeetWays,” which helps divorced parents find the half-way point when exchanging a child.

At Alaska Law Blog, Jerome Juday writes “Ghost Bike in Anchorage,” an elegy to an Anchorage cyclist who recently died in a car-bike accident.  Juday explains:

A ghost bike appears at the location where a bicyclist has been killed or seriously injured. According to ghostbikes.org, ghost bikes first began to be seen in St. Louis in 2003. They are memorials to a life that has been lost or damaged, and they are protests against the sometimes terrible dominance of the internal combustion engine.

Juday apparently cycles to work.

Calypso-crazed Ray Funk, Fairbanks District Court judge, has published articles in Caribbean Beat on the Golden Hands Rainmakers project and on the Trinidad dance legend Beryl McBurnie.

11/25/08 Add-on: Anchorage lawyer Cliff Groh blogs on interviews with jurors who convicted Ted Stevens. 

In the OSHA retaliation case reported last month, Judge John Suddock has awarded the prevailing defendant enhanced attorney fees of $129,466.50.  The defendant had issued an Offer of Judgment for $2,500.00 during the 75 % period of Rule 68(b)(1).

David Schlerf represents the plaintiff-employee.  Linda Johnson of Clapp Peterson represents the employer.  Both counsel are from Anchorage.

Fee Award