Ross v. Alaska State Commission for Human Rights, 033012 AKHRC, 3AN-10-06322 CI

Docket Nº:3AN-10-06322 CI
Case Date:March 30, 2012
Court:Superior Court of Alaska

HARRY ROSS, Appellant,



No. 3AN-10-06322 CI

Superior Court of Alaska, Third Judicial District, Anchorage

March 30, 2012



I. Introduction

This appeal arises from a racial discrimination complaint filed by Harry Ross against the Alaska Railroad Corporation, alleging a violation of Alaska's Human Rights Act when the Railroad failed to promote Ross to a supervisory position. After the Alaska Human Rights Commission found no evidence of racial discrimination in the Railroad's decision, Ross appealed to the Anchorage Superior Court. The superior court found that the Commission had not fully investigated the issue and remanded the case. On remand, an Administrative Law Judge issued a Recommended Decision finding that Ross had not established by a preponderance of the evidence that the Alaska Railroad Corporation's failure to hire him as a Trainmaster was motivated by race. Ross appealed after the Commission entered a Final Order adopting in full the ALJ's Recommended Decision and dismissing the complaint. The Court finds that it was unclear whether the ALJ considered the controlling Ninth Circuit precedent for the evaluation of subjective promotion criteria in hiring discrimination claims, and remands the case for further consideration.

II. Factual and Procedural History

Harry Ross has worked for the Alaska Railroad Corporation (the "Railroad") since 1968. In 2004, the Railroad created six new supervisory positions known as "trainmasters" for its Anchorage branch. The trainmasters were to supervise the performance, training and certifications of train and engine personnel.1 The Railroad solicited applications from existing train and engine service employees. Its solicitation notice included a description of the job and the minimum qualifications.2

Ross, then working as a Conductor for the Railroad, was one of seventeen or eighteen employee-applicants who met the minimum requirements when he applied for the position of a trainmaster in Anchorage. Of these applicants, two were African American and the rest were Caucasian. Ross was one of the two African American candidates.

Ross interviewed with a hiring committee composed of five Railroad superiors: Curt Rudd, Anchorage Terminal Superintendent; Mike Olson, Fairbanks Terminal Superintendent; Mark Turberville, Manager of Safety Systems; Cheryl Evans, Manager of Recruitment; and Pat Flynn, Manager of Special Projects. All five of the interviewers are Caucasian. After the interviews were completed, the committee compiled a list of candidates it believed were successful in their interviews. Ross was not included on this list. The hiring panel then submitted the names of the successful candidates to Matt Glynn, the Vice President of operations.

The Railroad did not hire Ross for an Anchorage trainmaster position. The four employees that it hired for the Anchorage positions were all Caucasian males.

On 19 November 2004, Ross filed an internal complaint of discrimination with the Railroad, claiming that he was not hired as trainmaster because of his race. The Railroad's Equal Employment Opportunity Manager, Ouida Morrison, began an investigation, requesting copies of the interview notes and an explanation of the process from the interviewing panel. After learning of the internal complaint, Matt Glynn met with Ross and tried to resolve the matter by offering him a trainmaster position, which Ross declined. Ultimately, no final determination came from the internal investigation.

On 22 April 2005 Ross filed a complaint with the Alaska Human Rights Commission (the "Commission"), alleging racial discrimination on the part of the Railroad that violated Alaska's Human Rights Act.3 The Commission initiated an investigation and requested that the Railroad respond to Ross' claims. The Railroad provided a number of reasons for why Ross did not receive the trainmaster position, none of which were race-based. The Railroad informed the Commission that Ross "performed very poorly" in the interview, "showing no enthusiasm, no motivation, and essentially no real interest in the job at all, other than the fact that it would improve his retirement position."4 Ross had given "the impression that he was entitled to the position of trainmaster simply because he was number one on the seniority roster. He did not have to compete on his own merit; he should have the job based solely on his longetivity."5 The Railroad further explained that it had concerns about hiring from union-represented positions, where seniority and union contracts were the predominant factors, for a non-represented management position, which would allow them to weigh more heavily factors such as judgment, direction and self-motivation.6 In addition, the Railroad stated that Ross had "indicated … he was not comfortable with computers" and that "some of the responsibilities of the position require work on computer systems."7

In response, Ross argued that he had worked for the Railroad for over thirty-seven years as a dedicated employee, that he possessed extensive experience as a railroad person and as a supervisor of railroad employees, that he did show enthusiasm for the trainmaster position, and that he believed the interviewers had existing knowledge of the questions so he gave "pointed answers."8 Ross claimed that he did not believe nor act as if the Railroad owed him the job.9 He admitted that he mentioned his "high three"10 for retirement as a benefit to the trainmaster job, but that this was not his sole motivation.11 Ross countered that he did possess basic computer skills but did not have familiarity with a new software program that the Railroad had recently started using.12 He argued that none of the Anchorage trainmasters chosen had his level of experience working on the Railroad, nor were they any more knowledgeable about computers than he was.13

The Commission then reviewed documents provided by the Railroad, including Ross' personnel file, the applications and resumes of the trainmaster applicants, a list of questions asked during the interview, the notes taken by the hiring panel during the interviews of Ross and the successful applicants, and a list of all applicants for the trainmaster position detailing each candidate's name, race, date of hire, position held at the time of interview, and the result of the interview. The Commission also interviewed Ross and each member of the interviewing committee.14 The Commission did not, however, interview any other applicants or any other employees of the Railroad.15

On 29 March 2007 the Commission concluded that the "evidence did not support Ross' allegation that the Railroad discriminated against him on the basis of his race when he was not hired as a trainmaster."16 The Commission closed Ross' case on 29 April 2007 because the investigator did not find substantial evidence to support Ross' claims.17

Ross appealed to the Superior Court, arguing that the Commission did not complete the investigation because it only questioned the interview committee and only reviewed a limited number of documents, which Ross contends the Railroad manipulated after the interview. Ross also claimed that a history of discrimination existed already in the Railroad's hiring practices.

On 10 March 2008 Judge Rindner ruled that the Commission had committed an error of law in failing to fully investigate the Railroad's purported legitimate reasons for not hiring Ross:

Substantial evidence in the Commission's record does not raise a genuine dispute about the Railroad's purported legitimate reasons for not hiring Ross. However, this lack of evidence results because the Commission conducted an extremely limited investigation, not because evidence does not exist. The record reflects that the Railroad asserted legitimate reasons for not hiring Ross, that the Commission interviewed a limited number of Railroad employees who corroborated the Railroad's position, and that the Commission terminated the investigations following these interviews. Nothing in the record shows the Commission Investigator responded to Ross' assertions that Railroad employees were amazed that he did not receive the position or that successful applicants lacked computer skills.18

Judge Rindner found that a prima facie case of discrimination existed and that objective evidence created a genuine issue of fact as to the legitimacy of the Railroad's hiring decision. Because factual disputes regarding this decision persisted between the parties, Judge Rindner concluded that the Commission was required by law to grant Ross a hearing.19 Ross had the right on appeal to supplement the record by submitting documents that (1) supported his claims of a pattern of discrimination in the Railroad's hiring practices, (2) showed that the applicants hired as Trainmasters lacked computer skills, and (3) reflected that he had been a victim of discrimination in the past. Judge Rindner reversed the dismissal of Ross' complaint and remanded back to the Commission to hold a hearing under the Alaska Human Rights Act.20

Pursuant to the Act, Administrative Law Judge Rebecca Pauli presided over a hearing that this time included testimony from Ross, the members of the interview panel, Matt Glynn, Ouida Morrison, and several Railroad employees called by Ross to testify about the Railroad's treatment of African American employees.

On 15 July 2009 the ALJ found that Ross had not shown by a preponderance of the evidence that the Railroad's decision not to hire him as a trainmaster was motivated by racial discrimination. "The record supports a finding that it is more likely than not that Mr. Ross interviewed poorly and that the [Railroad]'s hiring decision...

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