Parello v. Alaska State Commission for Human Rights, 080411 AKHRC, 3AN-09-12728 CI
|Docket Nº:||3AN-09-12728 CI|
|Opinion Judge:||PHILIP R. VOLLAND SUPERIOR COURT JUDGE|
|Party Name:||CHARLIE PARELLO dba PULSE PUBLICATIONS Appellant, v. ALASKA STATE COMMISSION FOR HUMAN RIGHTS, Appellee.|
|Case Date:||August 04, 2011|
|Court:||Superior Court of Alaska|
DECISION ON APPEAL
Robin Block (Block), contacted the Alaska State Commission for Human Rights (the Commission) complaining of discrimination on the basis of disability by her former employer, Charlie Parello (Parello), proprietor of Pulse Publications, on June 12, 2003. Her complaint set forth allegations that Parello failed to accommodate her disability and was later amended to include the allegation that he terminated her employment as retaliation for her complaint to the Commission. A hearing was held before Administrative Law Judge James T. Stanley (Judge Stanley) on March 18, 2008, pursuant to AS 18.80.120.
Judge Stanley resigned some time after he heard the case and Administrative Law judge Rebecca L. Pauli (Judge Pauli) crafted a Recommended Decision on May 29, 2009, based on the digital recording of the hearing and the exhibits submitted at the hearing.2 The Recommended Decision held that Parello was not liable for failing to accommodate Block on the basis of her disability but that he had fired her as retaliation for protected activity as defined under Alaska's anti-discrimination statute, AS 188.8.131.52 The Recommended Decision required Parello to pay damages of $2, 160.00 with interest at 3.5 percent per annum.
Parello now appeals the Commission's Final Order. Block does not appeal the portion of the Final Order denying her discrimination claim.
Block lost her right leg four inches above her knee in a motorcycle crash in 1971.7 She has lived with a prosthesis since then and occasionally uses crutches.8 Block began working in the Pulse Publications office in October 2002.9She had previously worked in the warehouse stuffing newspapers, but found it difficult due to her disability.10
Pulse Publications is run from an office building that houses multiple businesses.11 Parking is available on all sides of the building, but there were no handicapped spaces painted while Block worked for Pulse Publications.12 Block parked near the back entrance to her office near a loading dock so that she did not have to use a set of stairs she felt were dangerous due to her disability, and to avoid navigating the parking lot when it was icy during the winter months.13
Block testified that she requested the designation of a handicapped spot in late 2002 or early 2003, but Parello denied her request.14 She noted that on one occasion another employee had parked in such a way that the loading dock was blocked and she was forced to drive home to use her phone to call Parello and tell him she could not access the building.15 Block also testified that at times cars would double park behind her when she parked in front of the loading dock, blocking her in.16
On some occasions Block's car had to be moved to accommodate deliveries and other business involving the loading dock.17 Block explained that her prosthesis is at times uncomfortable and when she was sitting for long periods in the office she would remove it.18 In order to put the prosthesis back on Block had to pull up her skirt to her groin, something she was not comfortable doing in front of her coworkers.19 Thus, when Block's car had to be moved on short notice, Parello or other Pulse Publications employees would move Block's car.20 Block testified that she became uncomfortable with other people operating her car and being in her car, and she again asked Parello for a handicapped parking spot.21 Block alleged that Parello again denied her request.22
On June 11, 2003, Block arrived at work and could not park due to other parking lot occupants filling the spaces she normally used.23 Parello had not yet arrived at work, and she contacted the property manager for the Pulse Publications building and requested a handicapped parking spot.24 The management company assured Block that a spot would be painted for handicapped parking.25 When Parello arrived at work Block informed him she had called the management company and that a spot would soon be painted for handicapped parking.26 Block described Parello as not "real happy about it" and said she knew "things weren't going to be happy in the office."27 Parello told Block she did not need a handicapped parking space and told Block not to contact the management company again.28
Block also called the Commission and reported that her employer had been unwilling to provide her a handicapped parking spot.29 She filed a complaint with the Commission and reported that the management company was willing to give her a parking spot, but she was concerned for her job.30
The next day, on June 13, 2003, Parello informed Block and the two other office employees of Pulse Publications that business was slow and he no longer had a need for office personnel.31 He specifically noted that the money the sales staff was bringing in through advertising sales revenue was not enough to support the salaries he paid them.32 Without sales staff, he claimed he did not need Block acting as a secretary or salesperson anymore.33 He said he would give them a week in case things turned around, and that they could still come into the warehouse to stuff papers once a month if they wanted to continue that work.34 Parello testified that he had been thinking about making this change for "awhile" before he terminated the office staff.35
Block returned to work the following week. On June 17, 2003, Parello informed Block that he would pay her for the rest of the week but she did not need to come in anymore.36 Block sought work intermittently after being let go from Pulse Publications and eventually got a job with Big Brothers Big Sisters in February 2005.37
STANDARD OF REVIEW
This court has jurisdiction over Parello's administrative appeal pursuant to AS 22.10.020(d). When reviewing the appeal, this court must determine whether the Commission's Final Order was supported by "substantial evidence."38 Substantial evidence exists if, considering the record as a whole, the quantum of the evidence is substantial enough that a reasonable mind might accept the administrative agency's decision.39 Accordingly,
[Wjhere the evidence is conflicting, the reviewing court will not reweigh the evidence and substitute its judgment for that of the trier of fact. Thus, the evidence should be reviewed in favor of the [Commission's] findings even though the reviewing court might have taken a contrary view of the facts.40
Parello argues that this court should use an "independent judgment" or "substitution of judgment" standard to review the Commission's determinations. Parello relies on a Lousiana Court of Appeal case to support the position that because Judge Pauli issued the Recommended Decision in this case after reviewing a digital recording of the initial hearing with Judge Stanley, her determinations were not based on first-hand observations, and as such require a more stringent standard of review on appeal. The Louisiana Court of Appeal's holding in Carpenter v. State of Louisiana, is inapposite to Parello's case in that it relies on Louisiana statutes and addresses a factual scenario distinct from Parello's case.41
Parello raises four issues on appeal: 1) Did Parello terminate Block's employment from Pulse Publications?; 2) If so, when did Parello terminate Block's employment?; 3) Did Block engage in protected activity under the relevant statutes?; 4) If so, and if Block's employment was terminated by Parello, was the termination motivated in whole or in part by Parello's desire to retaliate against her due to the protected activity she engaged in?
Parello argues on appeal that the evidence presented to Judge Stanley and later reviewed by Judge Pauli indicated that Block was never terminated, and if she was, the date of termination was June 17, 2003, the last day she came to work at Pulse Publications.
Block testified that on June 13, 2003: "Charlie bought lunch for us, sat us down in the warehouse, and then laid-off the officer workers in front of Chuck and Mike."42 Block explained further in response to questioning:
Q: And so what did Mr. Parello say when he did this? A: He said the newspaper business is slow. You know, basically he didn't have a need for us, the three of us, Ryan, Tiffany, and myself. He said I'll give you a week, if things turn around, and - and you can come - and once a month and work stuffing papers, you know, if you want to continue doing that.
Q: Okay. And at that point were you able to stuff papers?
A: No, I'd already told Charlie I can't manage the bundles. And then I'm having to have other employees pick them up for me, which isn't their job. You know, that's not...
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