Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Philip R. Volland, Judge. Superior Court No. 3AN-09-10085 CI. Trial Court Case # 3AN-09-10085CI.
Kenneth L. Covell, Law Offices of Kenneth L. Covell, Fairbanks, for Appellant.
William E. Milks, Assistant Attorney General, Juneau, and Michael C. Geraghty, Attorney General, Juneau, for Appellee Alaska State Commission for Human Rights.
Sean Halloran, Littler Mendelson, P.C., Anchorage, for Appellee Teck Alaska Incorporated.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
The Alaska State Commission for Human Rights dismissed Gregg Conitz's complaint against his employer, Teck Alaska Incorporated, alleging discrimination in its promotion decisions. The superior court dismissed Conitz's appeal as moot, finding that the same claims had already been decided by a federal court and that the doctrine of res judicata would therefore preclude further pursuit of the claims if they were remanded to the Commission. Conitz appeals. We affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
Over the last seven years, Gregg Conitz has filed a number of claims against his employer, Teck Alaska Incorporated (Teck), alleging violations of state and federal civil rights statutes. Teck operates the Red Dog Mine in what it characterizes as a joint venture with NANA Regional Corporation. Teck has a hiring preference for NANA shareholders under which " [f]irst preference for all Red Dog jobs would go to qualified
NANA shareholders."  Conitz, who describes himself as white and as a minority in the Northwest Arctic Borough (which is geographically coextensive with the NANA Region), contends that Teck's preference for NANA shareholders is racially discriminatory and that it has cost him several opportunities for promotion to supervisory positions at the Red Dog Mine.
In 2006, Conitz filed complaints with both the Alaska State Commission for Human Rights (the Commission) and the federal Equal Employment Opportunity Commission (EEOC) based on Teck's failure to promote him in 2004 and 2005 to positions as mine operations supervisor and mine trainer, respectively. After the EEOC declined to act on Conitz's claims, he brought suit against Teck on those claims in federal district court. The federal district court dismissed Conitz's suit, ruling that he had failed to demonstrate he was qualified for the positions he sought and that Teck's shareholder preference was " not prohibited by law because it is based on the permissible distinction of shareholder status rather than race."  The Court of Appeals for the Ninth Circuit affirmed, though it limited its holding to Conitz's failure to show he was qualified for the jobs he sought; it did not discuss the legality of Teck's hiring preference.
Between the time of the federal district court's decision and the Ninth Circuit's affirmance, Conitz filed new complaints with the EEOC and the Commission alleging new civil rights violations. In these complaints, Conitz alleged that Teck had twice more failed to promote him to the position of mine operations supervisor, once in November 2007 and again in July 2008, because of its unlawful shareholder preference. The EEOC dismissed Conitz's complaint on grounds that it was " unable to conclude that the information obtained establishes violations of the statutes," and Conitz again brought suit on his claims in federal district court.
While this second federal suit was pending, the Commission staff issued its own determination of Conitz's second administrative complaint. The Commission found that Conitz's claim based on alleged discrimination in 2007 was untimely and therefore " not jurisdictional for the Commission" ;  and it concluded that his claim arising in 2008 was unsupported by substantial evidence, relying on testimony that the employee selected over Conitz for the position at issue was " not only a better equipment operator than complainant, but . . ., in the foreman's opinion, had a better safety record, better leadership skills, broader experience, and a better attitude than complainant." The Commission's investigations director approved this determination and dismissed Conitz's case by order dated August 20, 2009.
Conitz appealed this order to the state superior court. While the appeal was pending, the federal district court ruled on Conitz's second federal suit. It relied on the doctrine of res judicata to decide that Conitz was precluded from litigating the 2007 failure to promote, reasoning that he could have pursued the claim in his first federal suit, which did not proceed to final judgment until July 2008. By separate order the court rejected Conitz's claim based on the 2008 failure to promote, which was too recent to have been brought in the earlier suit; the court ruled that Conitz was not qualified for
the position he sought and that Teck's shareholder preference was not unlawfully discriminatory. On appeal the Ninth Circuit affirmed the lower court's decision that Conitz was not qualified for the position he sought but again declined to reach the legality of Teck's shareholder preference, on grounds that " Conitz ...