Alaska Employment Law

U. S. District Judge Timothy Burgess has accorded collateral estoppel effect to Superior Court judgments affirming the Alaska Human Right Commission’s dismissal of charges for lack of substantial evidence. 

Elsa Billingham had filed ASCHR and EEOC charges alleging that the State had discriminated and retaliated against her (age and sex) in the events leading up to a Last Chance Agreement.  The state Commision dismissed Billingham’s Title 18 charges for lack of evidence, and the state Superior Court affirmed.  In the meantime, the State had fired Billingham for not living up to the LCA, and Billingham had sued the State for retaliatory and discriminatory discharge, arguing that the dismissal was, in part, an illegal response to her earlier charges to the state and federal commissions.

Burgess has now held that the Superior Court’s affirmance of the Human Rights Commission’s dismissal precludes Billingham from challenging the validity of the Last Chance Agreement in both her Title VII and Title 18 claims.  Burgess relied on 28 USC § 1738 (requiring federal courts to give same preclusive effect to state court judgment that state courts would give) and AS 18.80.280, which provides

The acquittal of a person by the commission or a court of competent jurisdiction of any alleged violation of this chapter is a bar to any other action, civil or criminal based on the same act or omission.

Burgess concludes: “Thus, the two Superior Court decisions, issued on July 7, 2006 and February 15, 2008, will be given preclusive effect by this Court.”

Comment:  In the interval between final briefing and the issuance of this Order, the Alaska Supreme Court issued Parson v. State, Dept. of Rev., AHFC, ___ P.3d ___, 2008 WL 2853435 (Alaska July 25, 2008), in which the Court held that ASCHR’s administrative closure of a Title 18 charge for lack of substantial evidence is not an “acquittal” under AS 18.80.280.  No party cited this recent opinion to the federal court, and the court’s opinion does not cite to it. 

Given the Parson holding that an administrative closure is not an acquittal, I doubt that the subsequent affirmance of that closure order is an “acquittal,” either.  See earlier AEL discussion of Parson.

Billingham v. State, DOTPF, 3:05-cv-0240 TMB (D.Alaska Order of Aug. 14, 2008)

David Edgren of Anchorage represented Billingham.  Brenda Page of the Anchorage AG’s office represented the State.