October 8, 2010
JAMES SMITH, APPELLANT,
ANCHORAGE SCHOOL DISTRICT,
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge. Supreme Court No. S-13285 Superior Court No. 3AN-06-12525 CI
The opinion of the court was delivered by: Stowers, Justice
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, e-mail email@example.com.
Before: Carpeneti, Chief Justice, Winfree, Christen, and Stowers, Justices. [Fabe, Justice, not participating.]
On October 29, 2004, the Anchorage School District terminated James Smith from his security position at Whaley Secondary School. Smith sued the School District, claiming: (1) race discrimination; (2) age discrimination; (3) disability discrimination; and (4) breach of the covenant of good faith and fair dealing. The superior court granted summary judgment in favor of the School District on all claims. We conclude that Smith did not present evidence raising genuine issues of material fact on any of his claims and that the School District was entitled to judgment as a matter of law on all claims. We therefore affirm the superior court's grant of summary judgment.
II. FACTS AND PROCEEDINGS
James Smith was a Mental Health Technician (MHT) at Whaley Secondary School, a school in the Anchorage School District for students with severe emotional disturbances and related behavioral problems. MHTs are safety and security personnel at Whaley and are trained and authorized to restrain students using the Mandt system of de-escalation and restraint. In order to use Mandt techniques, the School District requires MHTs to obtain certification and attend an annual three-day recertification training program.
A. Smith's Race Discrimination Complaint
On June 4, 2004, Smith and Todd Hess, the School District's Director of Contract Administration, met for a disciplinary conference. Hess held the disciplinary conference in order to address, among other things, complaints that Smith was making racially insensitive remarks. Smith is African-American.
During the conference, Smith expressed his belief that it was his coworkers who were acting in a racially inappropriate manner. Hess forwarded Smith's complaints to the School District's Equal Employment Opportunity Office (EEO) "[b]ecause Smith's allegations against his coworkers concerned possible racial harassment or discrimination." The EEO conducted an investigation and issued a report on November 12, 2004, concluding that there was "no evidence to support the allegation that coworkers made racial comments to [Smith]."
B. Smith's Absence From Whaley
Whaley held its annual Mandt training for returning MHTs on August 26, 27, and 30, 2004. Smith attended the first day of training, which was a Thursday. At the beginning of the day, Smith informed Whaley's principal that he intended to use personal time off for the next two training days (Friday August 27 and Monday August 30) in order to officiate at his niece's wedding in California. Smith explained that he had purchased his airline tickets for this travel in July. He was scheduled to fly out of Anchorage Thursday evening around 7 or 8 p.m. The principal told Smith that he could not take the personal days off because of the mandatory training. Later in the day, Smith informed the trainers that he was not feeling well. At lunch, Smith went to the Veteran's Administration Hospital to see a doctor, received a prescription for pain medication, and then went home.
Smith testified that he called in sick that evening for the next morning, Friday, August 27, because he was still in pain. Smith testified in a deposition that he stayed at home that day with his son. He testified that he was feeling better by the afternoon so he decided to fly that night to California. He testified that he attended the wedding on August 28 and stayed with a relative through August 29. Upon his arrival in Anchorage sometime after midnight Monday, August 30, he realized that he was sick and could not work, so he called in sick. Thus, he did not attend the second and third Mandt training days.
C. Ensuing Disciplinary Conferences
On September 8 Hess held a disciplinary conference with Smith to address "concerns related to [his] absence from work on August 27 and 30, 2004." Smith told his story, and Hess asked Smith to provide a copy of his boarding pass from his trip out of state to corroborate his story.
At the September 8 conference, Smith provided a physician's note stating that Smith was unable to walk more than 100 feet without resting, was unable to stand for longer than five or ten minutes, and may need crutches to aid in movement. Smith's MHT position required him to be in excellent health and specifically required him to be able to physically restrain students. Based on Smith's physician's note, Hess placed Smith on leave until he provided the School District with a fitness for duty statement from a physician indicating that he was medically able to perform the duties of his work position. Smith did not provide the requested information.
On September 13 Hess sent Smith a letter advising him that he had not provided the required travel documentation and giving Smith until September 17 to do so. The letter informed Smith that "[f]ailure to contact [Hess's] office [would] be viewed as insubordination." Smith still did not provide the requested information.
On September 20 Hess sent another letter notifying Smith that he had failed to provide the requested travel documentation and directing him to attend a discipline conference on September 28 to discuss his "insubordination."
On September 28 Hess and Smith met for the discipline conference, and Smith still did not provide the required travel documentation. Earlier in the week, Smith told Hess that it would take fourteen days to get documentation from the airline, so Hess set a deadline of October 15, 2004, for Smith to provide documents verifying the dates of Smith's travel. Hess also informed Smith that the School District intended to terminate his employment if he did not provide documentation.
During the conference, Smith produced another physician's note describing his hip injury. Smith's second physician's note stated that Smith's limitations were because of severe pain in his hip and that, "[e]ven with surgery correcting his pain, he [would] have life-long limitations" that would prevent him from "performing duties such as restraining others." According to Hess, Smith also stated at the conference that he was physically able and ready to return to work. Hess informed Smith that he would remain on leave until he provided a medical fitness for duty statement specifically addressing his ability to physically restrain students.
On October 7 Smith provided Hess with another physician's note. Smith's third physician's note stated that Smith had chronic hip pain limiting his ability to lift, bend, or squat. Hess informed Smith that this third note did not address his ability to restrain students, and thus Smith remained on leave.
Smith never provided the School District with documentation regarding his trip to California. On October 29 the School District terminated Smith for sick leave abuse, insubordination, and dishonesty. Smith was 53 years old when he was terminated and had worked for the School District for 19 years.
D. Procedural History
On October 30, 2006, Smith filed a lawsuit against the School District alleging: (1) breach of the covenant of good faith and fair dealing; (2) age discrimination; (3) disability discrimination; and (4) race discrimination. The School District filed a motion for summary judgment on all claims, and on May 22, 2008, the superior court heard oral argument on the motion. The superior court issued a ruling from the bench granting the School District's motion.
The superior court found that the School District did not fire Smith in bad faith, and granted summary judgment on his claim for breach of the covenant of good faith and fair dealing. The superior court also ruled that the School District's reasons for terminating Smith were an "adequate and independent basis for termination" that limited Smith to mixed-motive theories for wrongful termination on his discrimination claims. The court found that Smith had not presented the evidence of discrimination necessary for mixed-motive theories of race and age discrimination. The court granted summary judgment on Smith's race and age discrimination claims.
The superior court also found that there was "zero evidence" that Smith was fired because of his disability because the disability issues "hadn't yet played their way out in the system." It granted summary judgment on Smith's disability discrimination claim.
Smith appeals the superior court's grants of summary judgment on all claims.
A. Standard Of Review
"Grants of summary judgment are reviewed de novo, reading the record in the light most favorable to the non-moving party and making all reasonable inferences in its favor as well."*fn1 When reviewing a grant of summary judgment, we "must determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts."*fn2
B. Summary Judgment Was Proper On Smith's Race Discrimination Claim.
Smith argues that the superior court erred in granting summary judgment on his race discrimination claim against the School District. Smith argues that the "the close temporal relationship" between the June disciplinary conference when he raised concerns about racial comments by his coworkers and his termination in October raised a genuine issue of material fact whether race was a motivating factor in his termination. He also argues that the general circumstances under which the School District fired him raised a genuine issue of material fact whether race was a motivating factor in his termination. Smith brings his race discrimination claim under the Alaska Human Rights Act, Alaska Statute 18.80.220(a).*fn3 We have previously adopted the federal "pretext"*fn4 and "mixed-motive" analytical frameworks used in Title VII*fn5 claims for analyzing race discrimination claims under Alaska's anti-discrimination laws.*fn6 Although plaintiffs can pursue mixed-motive and pretext theories simultaneously,*fn7 Smith presents primarily a mixed-motive theory on appeal.
Under Alaska caselaw, a plaintiff must first present direct evidence of discriminatory intent in order to pursue a mixed-motive theory of discrimination under the Alaska Human Rights Act.*fn8 Once the plaintiff meets the threshold direct evidence requirement, he can prevail at trial by showing that his race was a "motivating factor" in the adverse employment decision.*fn9 In the mixed-motive context, the term "direct evidence" refers to the quantum of proof; it is not used as an antonym for "circumstantial evidence."*fn10 In order to show direct evidence the plaintiff must "at least offer either direct evidence of prohibited motivation or circumstantial evidence strong enough to be functionally equivalent to direct proof."*fn11
We first adopted the "direct evidence" threshold requirement for mixed- motive discrimination claims in VECO, Inc. v. Rosebrock.*fn12 In doing so, we adopted, with little discussion, the "direct evidence" requirement from Justice O'Connor's concurring opinion in Price Waterhouse v. Hopkins.*fn13 Justice O'Connor agreed with the Price Waterhouse plurality that Title VII's prohibition of discrimination "because of" gender allowed the plaintiff to pursue a mixed-motive theory,*fn14 but she also would have required a plaintiff to "show by direct evidence that an illegitimate criterion was a substantial factor in the decision."*fn15 We adopted the Justice O'Connor view because the Alaska Human Rights Act is modeled after, and is similar to, Title VII.*fn16
In 2003 the Supreme Court in Desert Palace v. Costa eliminated the "direct evidence" requirement for mixed-motive cases under Title VII.*fn17 In Desert Palace, the Court was asked to address what was the correct standard for making a "direct evidence" determination in mixed-motive cases. The Court held that Congress's 1991 amendments to Title VII meant that a plaintiff did not need to make a heightened showing through direct evidence in order to receive a "mixed-motive" instruction.*fn18 At least one commentator has urged us to follow Desert Palace and abandon the direct evidence requirement.*fn19
We decline to overrule our previous cases today and jettison the "direct evidence" requirement for mixed-motive claims of employment discrimination. Dropping the "direct evidence" requirement for mixed-motive claims of employment discrimination might reduce confusion about what qualifies as "direct evidence." See id. at 302-10. But the Supreme Court's reasoning in Desert Palace was based on statutory language that is not found in AS 18.80.220. Specifically, Title VII was amended following Price Waterhouse by adding 42 U.S.C.§2000e-2(m), which provides: "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." Desert Palace expressly relied on this statutory language in rejecting a "direct evidence" requirement for Title VII.*fn20 But Alaska statutory law contains no similar provision. Because neither party in this case comprehensively addressed this issue in their briefs*fn21 and because, as we discuss below, Smith's claims would fail under a mixed-motive theory even if we eliminated the "direct evidence" requirement, we decline to address this issue in this case.
Smith failed to present any evidence raising a genuine issue of material fact on his race discrimination claim under a mixed-motive theory. He acknowledges that Hess did not make any comments about race in the three sick-leave related disciplinary meetings. Smith claimed in his deposition that Hess ignored his June 4 complaint of racial discrimination, but it is undisputed that Hess communicated Smith's complaint to the EEO. The EEO investigated the complaint and issued a report in November. We conclude that the loose temporal proximity of Smith's complaint to his dismissal (approximately five months) and the general circumstances surrounding his dismissal do not raise a question of material fact on whether his termination was motivated by race.*fn22
Although Smith argues his discrimination claim under AS 18.80.220(a)(1), his argument would similarly fail under a retaliatory discharge theory under AS 18.80.220(a)(4).*fn23 We do not mean to imply that temporal proximity alone can never indicate that an adverse employment action was not motivated by a discrimination complaint,*fn24 but "as the period of time separating the two lengthens, the hint of causation weakens."*fn25 In this case, the five-month interval had so weakened the hint of causation that the proximity between Smith's complaint and his termination, without more, did not raise a question of material fact on whether his termination was motivated by the complaint.
Summary judgment was proper on Smith's race discrimination claim.*fn26
C. Summary Judgment Was Proper On Smith's Age Discrimination Claim.
Smith argues that the superior court erred in granting summary judgment on his age discrimination claim against the School District. He argues generally that the "circumstances of [his] work history" along with his "membership in the protected class" of people over the age of 40 raise a question of material fact whether age was a motivating factor in his termination.
Smith brings his age discrimination claim under AS 18.80.220(a)(1). Although we have yet to explicitly apply a mixed-motive analytical framework to an age discrimination claim under AS 18.80.220, our previous cases have implicitly acknowledged that a plaintiff may bring an age discrimination claim under a mixedmotive theory.*fn27
The Supreme Court recently held in Gross v. FBL Financial Services, Inc.*fn28 that Title VII's mixed-motive burden shifting analysis does not apply to federal age discrimination claims under the Age Discrimination in Employment Act (ADEA).*fn29 The Court held that plaintiffs in mixed-motive cases must prove by a preponderance of the evidence that age was a "but-for" cause of the employment decision, instead of just a "motivating factor."*fn30 The Court based its holding on differences in the statutory language between Title VII and the ADEA,*fn31 its independent construction of the language of the ADEA,*fn32 and the problems lower courts had in applying the mixed-motive analysis.*fn33 The School District urges this court to adopt the Supreme Court's analysis in interpreting Alaska's age discrimination statute.
But while we look to federal discrimination law jurisprudence generally, "AS 18.80.220 'is intended to be more broadly interpreted than federal law to further the goal of eradication of discrimination.' "*fn34 The Supreme Court's holding in Gross substantially relied on the differences between the ADEA and Title VII -- differences that do not exist in Alaska's anti-discrimination law. In addition, adopting the Court's holding in Gross would result in a different analytical framework for age discrimination claims than for other discrimination claims -- yet all are prohibited by the same sentence in the same statute. We decline to follow Gross and we expressly hold that a plaintiff can bring a mixed-motive age discrimination claim under AS 18.80.220.
Smith failed to present evidence raising a genuine issue of material fact on his mixed-motive age discrimination claim. Smith testified that he believed that age was a factor in his termination because he heard that a younger person was hired in his place.*fn35 But Smith had no first-hand knowledge that a younger person was hired in his place; his testimony was hearsay from an unnamed source. Hearsay statements that would be inadmissible at trial are inadmissible for the purposes of supporting a motion for summary judgment.*fn36 Because Smith failed to raise a genuine issue of material fact on whether his termination was motivated by age, summary judgment was proper on his age discrimination claim.
D. Summary Judgment Was Proper On Smith's Disability Discrimination Claim.
We have previously held that "AS 18.80.220 imposes a duty on an employer to reasonably accommodate a disabled employee."*fn37 In order to show a prima facie case for a disability claim under AS 18.80.220, a plaintiff must show:
(1) that he or she is an individual who has a disability within the meaning of the statute; (2) that he or she could perform the essential functions of the position he or she holds (with or without reasonable accommodation); and (3) that he or she has suffered an otherwise adverse employment decision because of the disability.[*fn38 ]
An employer's failure to make reasonable accommodations for an employee's disability is an adverse employment decision for the purposes of the prima facie case.*fn39 Federal courts have held that the ADA requires an employer to "engage with the employee in an 'interactive process' to determine the appropriate accommodation under the circumstances" once it is aware of the employee's disability.*fn40 An employer is liable for failing to provide reasonable accommodation if it is responsible for the breakdown in the interactive process.*fn41
Smith argues that the superior court erred in granting summary judgment on his disability discrimination claim against the School District. He argues that the School District failed to accommodate his disability by failing to engage in an interactive process to identify an appropriate accommodation. The School District argues that it was engaging in the interactive process when Smith was terminated for other reasons. It argues that its duty to accommodate was cut off by Smith's termination for sick leave abuse, insubordination, and dishonesty.
Smith failed to present evidence raising a genuine issue of material fact on the third prong of the prima facie case -- whether he suffered an adverse employment decision because of his disability. The School District was given notice that Smith's limitations might be a permanent disability when Smith provided a doctor's note detailing his "life-long" physical limitations on September 23, 2004. Yet Smith also stated to Hess that he was "physically able and ready to return to work" on September 23. Because Smith's personal account of his ability to work conflicted with the doctor's note, Hess told Smith that Smith would not be able to return to work until he provided a more detailed fitness for duty statement that included a description of his ability to restrain students. Smith provided another short doctor's note on October 7, but it did not reference his ability to restrain students. That day, Hess informed Smith again that he would remain on leave until he provided information on his ability to restrain students. Smith was terminated for other reasons on October 29.
Our review of the record indicates that there was no breakdown in the interactive process. Instead, the School District was in the process of attempting to obtain complete information regarding Smith's physical capabilities and limitations when he was legitimately terminated for other reasons.
Smith presented the School District with diametrically conflicting and facially irreconcilable information about his physical limitations and capabilities. His employment as an MHT required that Smith be physically capable of restraining students. Hess's evident concern was that Smith had placed the School District in a Catch-22 position. Smith said that he was ready and able to return to work. The School District would expose itself to liability if it allowed Smith to return to work in the face of his physician's note stating that "[e]ven with surgery correcting his pain, he [would] have life-long limitations" preventing him from "performing duties such as restraining others." Hess reasonably required that Smith produce a physician's report indicating Smith's capabilities and limitations. Such medical information gathering was a preliminary step inherent in engaging in the interactive process. Because Smith had not provided the requested information by the time he was terminated for other reasons, the interactive process had neither broken down nor advanced to a resolution. We gather this was the point the superior court was making when it ruled that the disability issues "hadn't yet played their way out in the system."
By requesting additional information, the School District engaged in the interactive process. The burden was on Smith to produce the oft-requested medical information. Because he did not do so, it was Smith, not the School District, who prevented progress in that process. Smith did not establish a prima facie case for a disability claim, and summary judgment on this claim was appropriate.
E. Summary Judgment Was Proper On Smith's Claim For Breach Of The Covenant Of Good Faith And Fair Dealing.
Smith also claims that the superior court erred in granting summary judgment on his breach of the covenant of good faith and fair dealing claim.*fn42 He advances a litany of arguments on why the School District's behavior was not in good faith and "bordered on the irrational."*fn43
Every contract in Alaska includes an implied covenant of good faith and fair dealing.*fn44 "The covenant has both a subjective and an objective component."*fn45 An employer violates the subjective component of the covenant when it acts with an improper motive, such as when it "discharges an employee for the purpose of depriving him or her of one of the benefits of the contract."*fn46 The subjective element is based on the employer's motives, not on the employee's personal feelings.*fn47 "Therefore, the employee must present proof that the employer's decision to terminate him or her 'was actually made in bad faith.' "*fn48
The objective component of the covenant "prohibits the employer from dealing with the employee in a manner that a reasonable person would regard as unfair."*fn49 We have stated that "[t]his covenant . . . requires that an employer treat like employees alike."*fn50 An employer also breaches the objective component of the covenant by terminating an employee on unconstitutional grounds or for reasons that violate public policy.*fn51
Smith failed to present evidence raising a genuine issue of material fact on his claim that the School District breached the subjective component of the covenant of good faith and fair dealing. None of the evidence Smith puts forward, even when viewed in the light most favorable to Smith, suggests that the School District discharged Smith for the purpose of depriving him of any of the benefits of his employment contract such as his retirement benefits.
Smith also failed to present evidence raising a genuine issue of material fact on his claim that the School District violated the objective component of the covenant. Although the question of what a reasonable person would find to be unfair is usually a question for the trier of fact,*fn52 this does not relieve Smith of the burden of presenting admissible evidence to successfully oppose a motion for summary judgment.*fn53 In Witt v. State, Department of Corrections, we held that an employee did not meet his burden of presenting evidence that he was unfairly terminated when he failed to introduce evidence showing that he was fired for any reason other than poor job performance.*fn54
Like the plaintiff in Witt, and as discussed above, Smith failed to present evidence that the School District terminated him for any reason other than its stated reasons: sick leave abuse, insubordination, and dishonesty. The School District did not violate Smith's constitutional rights or public policy by terminating him for those reasons. Furthermore, Smith did not present evidence suggesting that the School District treated Smith differently from any other employee.*fn55 Smith claims that it was "irrational" for the School District to suspect Smith of sick leave abuse because he could have traveled while sick, but "it is not unfair for an employer to question or disbelieve, in good faith, an employee's version of events."*fn56 Under the circumstances of this case, it was not unfair for Hess to disbelieve Smith's story that he had not been in California during work hours and had only traveled during the intervening weekend hours, and the School District did not violate the covenant of good faith and fair dealing by terminating him after he failed to corroborate his story.
We have also held that employers may violate the covenant of good faith and fair dealing by following unfair procedures in an employee's termination, even where the employer's grounds for termination were fair.*fn57 Smith claims that it was "irrational" for the School District to require a boarding pass as evidence of his travels, but he produced no evidence suggesting that the School District acted unfairly. After their initial September 8 disciplinary meeting, Hess gave Smith ample time to provide documentation of his travel dates and extended Smith's deadline to provide documentation three times. Although Smith now argues that Hess should have accepted affidavits as alternate documentation, Hess testified that Smith did not offer to provide alternate means of proof. Hess's evident purpose in demanding proof generated by the airline of the dates of Smith's travel was to see whether Smith traveled on the two work days he had asked and been denied to take personal leave -- Friday and Monday -- or if Smith actually traveled as he claimed -- on the red-eye flight late Friday or early Saturday morning, and returning shortly after midnight Monday morning. We conclude that a reasonable person would not consider the School District as having treated Smith unfairly by demanding corroborating travel documentation generated by the airline.
Because Smith did not raise a genuine issue of material fact on his claim that the School District breached the covenant of good faith and fair dealing, summary judgment was appropriate.
For the preceding reasons, we AFFIRM the superior court's grant of summary judgment on all of Smith's claims.