Alaska Employment Law

In a second suit by a non-Native Red Dog employee, over a later promotional opportunity, U. S. District Judge Ralph Beistline has again rejected a Title VII challenge to the NANA shareholder preference given by mine operator Teck Alaska.  Beistline held that the employee failed to make a prima facie case (as to qualifications), and that the preference was neither a racial classification nor a proxy for one.  Sixty-nine (69) of NANA’s 12,264 shareholders are not Alaska Natives.  Those 69 shareholders obtained their shares through inheritance.

When the 9th Circuit affirmed Beistline in the earlier suit, it relied on the issue of qualifications, and didn’t reach the merits of the shareholder preference claim.  Conitz v. Teck Alaska Inc., 2009 WL 2431375  (9th Cir. 2009).

Prima facie case.  Beistline compared the employee’s affidavit with testimony from a number of supervisory officials, and held that the employee’s affidavit was “uncorroborated and self-serving” and thus insufficient to raise a prima facie case.

The Ninth Circuit has repeatedly refused to find a “genuine issue” where the only evidence presented is “uncorroborated and self-serving” testimony. []  In this case, the only evidence to support Conitz’s qualification for the supervisor position is his own affidavit. While the Court does not disregard Conitz’s affidavit entirely, it is at odds with the testimony of all his superiors at the Red Dog Mine. It is an “uncorroborated and self-serving affidavit” which is insufficient to defeat a motion for summary judgment where substantial contrary evidence has been submitted. In light of the paucity of evidence that Conitz was qualified for a promotion, and the abundance of evidence to the contrary, the Court holds that Conitz has failed to make out a prima facie case for racial discrimination under Title VII.

Shareholder preference.  Beistline first held that the shareholder preference wasn’t a racial classification, and then addressed the proxy-for-race argument. 

much of the discrimination which took place in [Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 (9th Cir. 1982)] was done by restricting the selection of shareholders to those of Italian ancestry. The Ninth Circuit held that in those limited circumstances the process of selecting shareholders was subject to Title VII scrutiny. [] NANA’s shareholder selection, however, is prescribed by an act of Congress, namely ANCSA. It would be improper for this Court to find that NANA’s shareholder selection violates Title VII when it is Congress that has defined the shareholder class. Legislative enactments should be read in harmony with one another, whenever possible. [] The Court simply cannot conclude that Congress, in creating the Native Corporations, intended them to have less of an ability to negotiate contracts favorable to their shareholders than would any other corporation.

Conitz v. Teck Alaska Inc., Case No. 4:09-cv-0020-RRB (D.Alaska Order of Jan. 20, 2010)(citations omitted)

The employee has moved for reconsideration.