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Ross v. Alaska State Commission for Human Rights

Supreme Court of Alaska

August 30, 2019

HARRY ROSS, Appellant,

          Appeal from the Superior Court of the State of Alaska No. 3AN-16-09261 CI, Third Judicial District, Anchorage, Erin B. Marston, Judge.

          Mark Choate, Choate Law Firm LLC, Juneau, for Appellant.

          William E. Milks, Assistant Attorney General, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.




         After 3 6 years of service with the Alaska Railroad Corporation-most of those years as a conductor - an African-American man applied for a newly created managerial trainmaster position, but he was not chosen. He brought an unsuccessful internal racial discrimination complaint. He brought a similar complaint before the Alaska State Commission for Human Rights, and it was denied. He then appealed to the superior court, and it ultimately affirmed the Commission's determination that he had failed to carry his burden of showing racial discrimination.

         On appeal to us, the man contends that the Railroad's stated reasons for not hiring him were pretextual. Although there is some basis for his arguments that a hiring panel member may have harbored racial prejudice and that the explanation that he was not chosen because of poor interview performance was a post-hoc rationalization, we review the Commission's determination only for substantial supporting evidence. Under this deferential standard of review, we conclude that the evidence detracting from the Commission's determination is not dramatically disproportionate to the supporting evidence. Because substantial evidence in the record thus supported the Commission's determination, we affirm the superior court's decision upholding it.


         A. Facts

         Harry Ross is an African-American who was hired as a brakeman by the then-federally-owned Railroad in 1968, promoted to conductor around 1974, and promoted to yardmaster in 1982. He testified that when he was a brakeman and conductor, African-American colleagues commonly were referred to by a racial slur and the slur was used in his presence to deride an African-American colleague's performance. Ross asserted that when he was a yardmaster efforts were made to reduce his higher evening-shift pay to increase a white colleague's pay, and an employee - apparently white - he had trained to become a yardmaster later was chosen over him for a higher position.

         After three years as a yardmaster, Ross returned to being a conductor in 1985. He testified that he chose to return to the conductor position because of the discrimination he had endured as a yardmaster. Personnel records indicate that when the federal government transferred the Railroad to the State of Alaska in 1985, his employment terminated; he then was rehired by the State-owned Railroad as a conductor.

         Ross still was a conductor in 2004 when he learned the Railroad was hiring for nine new managerial trainmaster positions to be located in Anchorage, Fairbanks, and Talkeetna. The position description listed minimum qualifications of "15 years of train service experience and one year supervising, directing, or being a team leader for train operations personnel." The trainmaster positions were non-union, and length of experience was not determinative. Ross was among 18 candidates selected to interview for the 9 new positions; he sought one of the proposed Anchorage positions. Two candidates were African-American; the rest were white.

         A panel of five white Railroad employees interviewed candidates and recommended whom to hire; the recommendations were accepted in their entirety. The hiring panel was supposed to conduct interviews using a questionnaire with 25 graded questions, 3 ungraded questions, and 1 graded item titled "Interview Presentation." Ross responded to a question about his reasons for applying by citing his experience, his desire to increase his pension based on a better "high three" salary years, his enjoyment of working with people, and his wish to better support his new wife. He responded to a question about computer proficiency by stating that his skills were "basic."

         The panelists eventually abandoned the grading system because the candidates were not consistently asked the same questions and because panelists did not receive instruction on its proper use. Panelists testified that they instead discussed the candidate's strengths and weaknesses after each interview, and that, in a group discussion after concluding all the interviews, they decided which candidates to recommend. Four panelists made notes about some candidates' interview performance and qualifications; it appears that only one made notes, which were negative, about Ross's performance.

         The Railroad made offers to only 7 of 18 applicants, despite recruiting for 9 positions. Two positions were left vacant in Anchorage; neither Ross nor the other African-American candidate was offered a position. Although no successful Anchorage candidate had as long a tenure as Ross, all had been with the Railroad for many years - one for 22 years, two for 29 years, and one for 30 years. The Railroad continued recruiting to fill the vacancies, reducing the minimum required years of experience from 15, when Ross applied, to 5 in 2005.

         Ross filed an internal complaint with the Railroad in November 2004, alleging that he was not chosen for a trainmaster position because of his race. The complaint was investigated by Ouida Morrison, the Railroad's African-American equal employment opportunity manager; she reviewed notes panelists made during the interviews and conducted individual interviews with Ross and the panelists.

         Two of the panelists - Pat Flynn and Curt Rudd - allegedly had past racially fraught interactions with Ross. Morrison testified to hearing from a colleague that Ross once had remarked that white people look alike and that this remark upset Flynn. Morrison memorialized this account in an email to the Railroad's counsel, concluding that Flynn had "formed an opinion about [Ross] and never let it go." But it does not appear that Flynn was asked about the alleged incident during the subsequent discrimination investigations, and neither Flynn nor the colleague was questioned about it during the Commission's administrative hearing.

         Rudd admitted in testimony that he had referred to Ross by the nickname "Black Magic" for the 30 years they had known each other. Rudd testified that the nickname reflected Ross's apparently supernatural ability to turn trains around on schedule and that Ross had adopted the nickname for himself. Rudd further testified that the nickname was never meant to offend Ross and that Rudd ceased using the nickname when Ross objected to it in 2008. Ross denied ever referring to himself as "Black Magic," which he considered "kind of racist"; he said he felt the nickname was part of an ingrained hostile workplace culture that he had to let pass.

         Flynn and Rudd may have played a disproportionate role in deciding whether to hire Ross as trainmaster. Rudd was the Anchorage terminal superintendent and would have been Ross's direct supervisor; Flynn testified that both he and Rudd would supervise trainmasters located in Anchorage. Morrison and the Railroad's Vice President of Operations, who ultimately was responsible for the hiring decisions, testified that Flynn had been designated the lead panelist.

         Morrison testified that the panelists told her that when interviewing they focused on candidates' ability to communicate and interact, especially with younger colleagues. Morrison also testified that Ross told her he had been offended when Flynn entered Ross's interview late. Morrison concluded that Ross had performed poorly in the interview and that "he did not relay or sell himself that he was willing and wanting and desiring to do the job." But she never issued a formal determination whether the panel had discriminated against Ross.

         In April 2005 Ross filed a complaint with the Commission, claiming that the Railroad discriminated against him in violation of AS 18.80.220(a)(1), prohibiting employment discrimination based on race. The Commission investigator interviewed Ross and the panelists. The investigator issued a two-page determination in March 2007, finding that the Railroad did not offer Ross a trainmaster position because he provided short answers and failed to elaborate during the interviews, did not "sell himself," conveyed that he felt "entitled" to the position, and lacked computer skills. The Commission therefore dismissed Ross's complaint without a hearing.

         B. Proceedings

         Ross appealed the Commission's dismissal to the superior court. The superior court issued its first decision in March 2008. The court relied on the U.S. Supreme Court's three-part McDonnell Douglas Corp. v. Green test.[1] We have stated that, absent "direct evidence"[2] of discriminatory intent, the three-part test should be used to analyze discrimination claims.[3] Under the McDonnell Douglas framework, the complainant bears the initial burden of establishing a prima facie case of discrimination: membership in a protected class, application to a position for which the complainant was qualified, denial of the application, and hiring of a person not within the same protected class as the complainant.[4] If the complainant establishes a prima facie case, the burden shifts to the employer to offer "legitimate, nondiscriminatory reasons for the employment action."[5] An employer "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus."[6] If the employer offers a legitimate, credible reason for not hiring the complainant, the burden shifts back to the complainant to prove that the reason is pretextual.[7] "[A] complainant may demonstrate pretext 'either directly by persuading the [tribunal] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.' "[8]

         The superior court distinguished between the amount of evidence needed to prevail under the test at an adjudication and the amount of evidence needed (at that time) to compel an administrative hearing based on an investigation by the Commission.[9] A complainant needed only establish a prima facie case and offer facts raising a "genuine dispute about [the employer's] explanation of its decisions" to meet the evidentiary threshold to obtain an administrative hearing.[10] The court determined Ross had established a prima facie case of discrimination and offered facts raising a genuine dispute about the Railroad's explanation by offering documents the Commission had not addressed because of its limited investigation. The court therefore ordered the Commission to hold a full evidentiary hearing.

         A hearing was held before an administrative law judge (ALJ) in January 2009. Ross testified to past discrimination at the Railroad, including the common use of racial slurs earlier in his career and a specific instance when he heard a slur used to refer to an African-American colleague. He also testified to instances when he felt racist and discriminatory behavior had been directed at him. Ross testified that Rudd's "Black Magic" nickname referred to Ross's race and was offensive. Ross said that he had been training an apparently white subordinate who was promoted to a position that Ross also had applied for and that he believed the promotion was motivated by discrimination. Ross testified to being "annoyed" by Flynn's late arrival to the interview, but Ross insisted that it did not affect his performance. He testified that in his interview he stressed his experience as a yardmaster and his desire to train younger workers.

         Each hiring panelist testified, offering accounts of the trainmaster candidates' interviews - Ross's in particular - consistent with the internal and Commission investigations' findings. Panelists testified that they were looking for candidates to "sell themselves" on why they deserved the position and to demonstrate an ability to communicate. Panelists testified that Ross gave short responses to questions and failed to elaborate on how his experience qualified him for the trainmaster position, leading some to discount the value of his experience despite knowing his tenure and service as a yardmaster.

         Panelists testified that Ross appeared to lean too heavily on his experience, seemingly taking for granted that his experience would guarantee him a position. Flynn testified that this demonstrated a "seniority mentality." Flynn and two others testified that Ross appeared more interested in benefitting from the position - particularly a higher pension - than in benefitting the Railroad.

         Three former Railroad employees testified to racism and discrimination at the Railroad. A white former employee testified to a general culture of racial discrimination during his time at the Railroad. An African-American former employee testified to: hearing racial slurs; witnessing, sometime in the 1990s, a white employee use a racial slur when telling Ross not to sit in the same train car; and experiencing discrimination similar to what Ross alleged. Specifically, the former employee testified that when he was a yardmaster in 1993, he interviewed to become a terminal manager - a position with the same duties as yardmaster - and an interviewer accused him of being interested only in earning his "high three." He testified that the interviewer later told him he should not get the raise that came with the promotion, and that another interviewer - possibly Rudd - made a comment to the effect that he was too lazy for the job. He filed a complaint with the Railroad, but it found no discrimination.

         Another African-American former employee testified to hearing a colleague describe him to a third person using a racial slur in 2003 after the colleague thought their telephone conversation had ended. He testified that in 2003 or 2004 he had applied for a training program, that he had the most seniority of those who applied, that the employee who was selected had the least seniority, and that selection traditionally had been based on seniority. The former ...

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