Baker v. Alaska State Comm'n for Human Rights

• Decision Date: 18 September 2020
• Docket Number: Supreme Court No. S-17379
• Citation: 476 P.3d 1120
• Parties: Russell BAKER, Appellant, v. ALASKA STATE COMMISSION FOR HUMAN RIGHTS and Federal Express Corporation, Appellees.
• Court: Alaska Supreme Court

476 P.3d 1120

Russell BAKER, Appellant,

v.ALASKA STATE COMMISSION FOR HUMAN RIGHTS and Federal Express Corporation, Appellees.

Supreme Court No. S-17379

Supreme Court of Alaska.

September 18, 2020

Rehearing Denied December 21, 2020

Russell Baker, pro se, Anchorage, Appellant.

William E. Milks, Assistant Attorney General, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee Alaska State Commission for Human Rights.

William J. Evans, Sedor, Wendlandt, Evans & Filippi, LLC, Anchorage, and P. Daniel Riederer, Federal Express Corporation, Memphis, Tennessee, for Appellee Federal Express Corporation.

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

OPINION

BOLGER, Chief Justice.

I. INTRODUCTION

A pilot was fired by his employer after he collected a relocation allowance based on misleading statements that his spouse had relocated with him. While his employment termination proceedings were ongoing, he filed complaints with the Alaska State Commission on Human Rights, contending first that his employer engaged in marital status discrimination by requiring married pilots to relocate their spouses as a condition of the relocation allowance and second that his employer retaliated against him for filing the first complaint. The Commission concluded that there was substantial evidence of illegal discrimination, but exercised its statutory discretion to dismiss the complaint instead of bringing an enforcement action. The Commission also dismissed his second complaint, concluding that there was not substantial evidence of retaliation. The pilot appealed the Commission's decisions to the superior court, which affirmed the decisions, and he now appeals to this court. We conclude that the Commission did not abuse its substantial discretion by declining to prosecute the discrimination complaint. We also conclude that the Commission did not err by concluding that the employer did not retaliate against the pilot after he filed his discrimination complaint. We therefore affirm.

II. FACTS AND PROCEEDINGS

Russell Baker was hired by Federal Express Corporation (FedEx) in June 2006. Employment agreements between FedEx and its pilots are established via collective bargaining with a union, the Air Line Pilots Association, International (ALPA). During the relevant period of Baker's employment, ALPA's agreement with FedEx offered pilots on foreign duty assignments options to finance either relocation housing or their commute. Pilots based in Hong Kong could elect an "enhanced" relocation package instead of commuting. Pilots choosing that package had 18 months to complete their relocation, but were obligated to reimburse FedEx if they did not actually relocate. FedEx retained the right to request documentation establishing that relocation had actually occurred, including "verification of the permanent relocation of a pilot's spouse, and/or dependent children under the age of 18 years, if applicable."

In August 2009 Baker accepted an assignment to Hong Kong. In November 2009 he submitted a signed "Pilot Relocation Request Form" selecting the housing allowance "Enhanced Option," indicating that he understood the requirements and attesting that his spouse would relocate with him. In November Baker also emailed the FedEx relocation department, writing, "As you saw we're planning on taking the relocation package." He further wrote, "We [are] planning on traveling to [Hong Kong] just after Christmas to get set up."

Baker began flying trips out of Hong Kong in January 2010. In March Baker leased an apartment in Hong Kong. He began receiving housing allowance payments in April. According to Baker, he verbally informed the assistant chief pilot in Hong Kong that his spouse would relocate in the fall of 2010 after she resolved some health and employment issues.

In August 2010 Baker requested FedEx's relocation department purchase a one-way airplane ticket for his wife to travel from Anchorage to Hong Kong, stating, "My wife is ready to join me in Hong Kong" and "[w]e're finishing up our relocation process to [Hong Kong]." On October 16, 2010, his wife traveled to Hong Kong with a FedEx-purchased airplane ticket, but unbeknownst to FedEx, she had already purchased a return ticket. On October 25, 2010, she flew back to Anchorage, and did not return to Hong Kong for the remainder of Baker's assignment.

In May 2011 the FedEx Hong Kong assistant chief pilot emailed pilots a new housing allowance claim form and guidelines regarding the housing allowance. In June 2011 Baker returned the form, attesting that he understood the requirements and the potential consequences of falsification. He did not mark "yes" or "no" in response to the question, "Does your spouse reside with you at the residence listed above?" Instead, he wrote "see note" and attached a "Note of Explanation Regarding My Spouse's Current Hong Kong Residency." His note stated, "After talking with ALPA, I realize my spouse may not currently qualify as a resident in Hong Kong. I had previously considered her a resident, based on many factors, including completion of her physical relocation, the establishment of our private Hong Kong apartment, [and] her documentation as a resident ...." Baker added that although he found the requirements unclear, he did not believe his wife's return to the United States violated company policy because he "expected her to return with a frequency and duration" that would satisfy residency requirements. He acknowledged that his wife had not "expressed plans to return [to Hong Kong] within the next 45 days." He requested a waiver if the company determined he was not in compliance with the housing allowance requirements, without offering information regarding any extenuating circumstances other than his current visitor visa status and the scheduled end of his foreign duty assignment in six months. He did not raise concerns about marital status discrimination or allege that the housing allowance requirements unfairly impacted married pilots.

On September 21, 2011, FedEx notified Baker that he was under investigation for having improperly collected housing allowance payments. Around this time, FedEx began similar investigations of several other pilots.

On October 12, 2011, Baker filed a complaint with the Commission. He stated that FedEx's housing allowance policy constituted marital status discrimination. On the same date Baker also responded to FedEx's notice of investigation. He asserted that he had expected to have an 18-month window to complete any relocation, that he found the company's residency requirements subjective and confusing, that the policy constituted discrimination against married pilots, and that he believed he had been appropriately forthcoming with the company regarding his "good faith" attempt to relocate.

In December 2011 FedEx held a preliminary hearing as part of an internal disciplinary process. Baker was represented by an ALPA member and two ALPA attorneys. At the hearing Baker acknowledged that he had requested the enhanced housing allowance knowing that he and his wife were required to establish a primary residence in Hong Kong. Baker stated that he was aware that his wife's nine-day trip to Hong Kong might not constitute a relocation, but that he believed they had 18 months to complete the relocation. He further acknowledged that he had received monthly housing allowance payments beginning in April 2010, that his wife had not been to Hong Kong since October 2010, and that he had not submitted his "Note of Explanation" until June 2011.

In early March 2012, FedEx proposed a settlement agreement. According to FedEx, similar proposals were extended to all pilots found to have inappropriately collected the housing allowance. According to this proposal, if Baker acknowledged FedEx had just cause to terminate his employment based on his inappropriate collection of the housing allowance, underwent a disciplinary suspension without pay, and repaid the cost of the housing allowance, he could retain his job. Baker did not accept the settlement offer.

Later that month, the hearing officer issued a preliminary decision. Addressing Baker, he wrote:

It is clear from the record that you knew at all times pertinent to this case that you were not entitled to receive [Hong Kong] housing allowance payments unless both you and your wife relocated your primary residence to [Hong Kong]. ... [Y]ou knew that both you and your wife were required to complete the relocation of your primary residence to [Hong Kong] by approximately June 2011.

It is also clear from the record that your wife did not complete the relocation of her permanent residence to [Hong Kong] at any time, and certainly not within 18 months from the date of your activation into your [Hong Kong] crew position.

The hearing officer further found that the record undercut Baker's representation that he believed his wife had a "genuine intent" to relocate based on the way her trip to Hong Kong was planned and executed. The hearing officer noted that although Baker requested a one-way ticket from FedEx for his wife's relocation to Hong Kong, he was aware that she personally purchased a return ticket for nine days later without a plan to return. This indicated to the hearing officer that Baker's wife's October 2010 trip occurred only to create the appearance of relocation.

The hearing officer additionally observed that Baker frequently "jumpseated"¹ to Anchorage, but rarely used jumpseats on FedEx flights and that Baker himself was reluctant to testify about his jumpseating practices during the period when his wife was allegedly still planning to relocate to Hong Kong. These facts led the hearing officer to conclude that Baker wanted to conceal the frequency of his trips to avoid raising questions regarding whether he and his wife resided in Hong Kong. Based on the record in Baker's case, the hearing officer recommended that his employment with FedEx be terminated.

Baker availed himself...