Alaska Supreme Court Rejects Federal Mixed Motive Standard in Employment Discrimination Suits under Alaska Human Rights Act

The Alaska Supreme Court issued an opinion on October 12, 2010, in which it affirmed summary judgment entered for the Anchorage School District (ASD) on state discrimination and implied covenant claims. Because this case involved mixed motives—where unlawful and lawful motives are implicated in an employer’s decision—the Court examined mixed motive theories. It rejected the federal mixed motive standard used in Title VII employment discrimination claims and, instead, reaffirmed the more employer-friendly Alaska standard that requires direct evidence of discrimination to support a mixed motive claim. Smith v. Anchorage School District.

The opinion affects how employment discrimination claims are analyzed in Alaska, and may also impact where such claims are litigated.

Case Background

James Smith, an African-American, worked as a mental health officer for an elementary school in Anchorage. Smith made a complaint to his supervisor in June 2004 that other employees were making racially insensitive remarks. While his complaint was under investigation, Smith missed mandatory training days in August 2004. ASD scheduled a counseling session in which Smith claimed he missed the training because he had traveled to California for his niece’s wedding. ASD asked Smith to provide proof that he had traveled out of state.

At the same counseling session Smith produced a doctor’s note that raised questions as to whether he could perform the essential functions of his job. ASD placed Smith on medical leave and asked him to provide a fitness for duty statement from his doctor. ASD then followed up with Smith, asking him to provide the requested travel-related documentation and fitness for duty statement. Smith never provided any proof that he had traveled out of state. And although he submitted two additional doctor’s notes, neither of the notes addressed whether Smith could perform the essential functions of his job.

On Oct. 29, 2004, ASD terminated Smith for sick leave abuse, dishonesty, and insubordination. Smith was 53 years old at the time and had worked 19 years for ASD. He filed suit alleging age, race, and disability discrimination under the Alaska Human Rights Act (AHRA), and a claim for breach of the implied covenant of good faith and fair dealing. ASD moved for summary judgment. The superior court granted ASD’s motion. Smith appealed.

Reviewing the Basic Principles

There are two common standards for proving intentional (or disparate treatment) discrimination: mixed motive and pretext (sometimes also referred to as direct and circumstantial theories of proof). It is possible for a plaintiff to litigate both theories in the same case, but more commonly one or the other will be “in play,” and not both at the same time. Smith prosecuted his discrimination claims under the mixed motive standard.

Under the Alaskan mixed motive standard, a plaintiff must present direct evidence of discrimination or circumstantial evidence that is strong enough such that it is “functionally equivalent to direct proof.” This usually requires proof of discriminatory action, or words that directly relate to the challenged decision and establish that an impermissible discriminatory reason was a “motivating factor” in the decision being challenged.

For example, an e-mail referencing an employee’s age and discussing termination could be direct evidence of an impermissible motive if it could be inferred that the termination decision was made because of the employee’s age (“Joe’s tired and old, we need to get some fresh blood in here”). In Alaska, if direct evidence supporting an AHRA mixed motive claim exists, the burden of proof shifts to the employer to show by a preponderance of the evidence that the same decision would have been made regardless of the impermissible motive.

Federal law differs depending on the specific statute. Under Title VII, the U.S. Supreme Court clarified in Desert Palace v. Costa that there is no need to show direct evidence in mixed motive cases because of amendments enacted by the Civil Rights Act of 1991. Instead, an unlawful employment practice is established when a plaintiff shows that a protected classification was a motivating factor for an employer’s decision even if other factors also motivated the decision. An employer may defend by showing that the same decision would have been made; but this does not bar the claim, it only affects available remedies.

Note, however, that mixed motive theories are not available for claims filed under the Age Discrimination in Employment Act. Gross v. FBL Financial Services, Inc. Plaintiffs alleging a federal age discrimination claim must prove by a preponderance of evidence that age was a “but-for” cause of the challenged decision.

In contrast to a mixed motive theory, pretext claims analyze circumstantial evidence. Under both Alaska and federal law, no direct evidence is necessary to prove a claim under a pretext or circumstantial theory. Instead, courts apply the well-known McDonnell Douglas standard. A plaintiff establishes a prima facie case by showing that he or she was a member of a protected classification, that the plaintiff was qualified for the job or satisfactorily performing the work, that an adverse employment decision was made, and that a person not in the plaintiff’s protected classification received more favorable treatment.

The burden of production (not proof) then shifts to the employer to show that the decision was supported by a legitimate, nondiscriminatory reason. If the employer meets this burden, the plaintiff gets that “last at bat” to show pretext; that is, that the avowed justification is a fabricated or pretextual response to cover up impermissible discrimination. The burden of proof remains with the plaintiff at all times. Smith did not argue a pretext theory, but it is useful to understand the theory for purposes of a general background on employment discrimination claims in Alaska.

The Supreme Court’s Opinion

In an opinion by Justice Craig Stowers, the Alaska Supreme Court declined to reject the direct evidence test used under Alaska law to analyze mixed motive cases. The Court reasoned the AHRA was not affected by the Civil Rights Act of 1991. Moreover, there was no basis or reason to distinguish age, race, or disability discrimination claims under the AHRA because all were addressed by the same statutory provision. The Court also noted that Smith’s claims would fail even if the direct evidence requirement was abandoned.

Turning to the merits, the Court found no genuine issue of material fact regarding race discrimination because the complaint was made several months before Smith was terminated. The passage of time made any inference too attenuated to sustain the claim. The Court affirmed summary judgment on the age discrimination claim because Smith never offered any direct evidence of discrimination. He relied solely on inadmissible hearsay.

Regarding the disability discrimination claim, the Court concluded that Smith failed to cooperate with ASD because he never submitted the requested doctor’s note addressing whether he could perform the essential functions of the job. Therefore, Smith could not establish a prima facie case for disability discrimination.

Lastly, Smith’s implied covenant claim failed because there was no evidence to support his contention that ASD fired him to deprive him of his retirement benefits or that ASD had acted in an objectively unreasonable manner.

The Significance of This Opinion

• The Court’s opinion is significant in several respects:
• It preserves the direct evidence test for AHRA mixed motive cases. This is an employer-friendly standard.
• It may result in more plaintiffs filing Title VII claims as opposed to claims under the AHRA, providing they can show that the employer meets the jurisdictional threshold requirement of having 15 or more employees. In other words, an increase in Title VII claims could give rise to more threshold jurisdictional challenges to determine whether an employer was a covered employer.
• The filing of more Title VII claims may result in more cases being removed to federal court, a forum generally viewed as more favorable for employers than state court in Alaska.
• It confirms that mixed motive theories are available for age discrimination claims filed under the AHRA.
• Finally, it emphasizes the importance of employers properly documenting disciplinary decisions and working closely with counsel at all stages of any workplace investigation and discipline.