Moody-Herrera v. State, Dept. of Natural Resources

Decision Date27 November 1998
Docket Number5050,S-8191,Nos. S-8221,A,MOODY-HERRER,s. S-8221
Parties14 NDLR P 13 Deborahppellant and Cross-Appellee, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee and Cross-Appellant.
CourtAlaska Supreme Court

Bradley D. Owens, Jermain, Dunnagan & Owens, P.C., Anchorage, for Appellant/Cross-Appellee.

Sarah J. Felix, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee/Cross-Appellant.

Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, and BRYNER, Justices.


EASTAUGH, Justice.


We consider here whether a hearing-impaired employee's assertion that her employer failed to reasonably accommodate her disability states a viable disability discrimination claim under AS 18.80.020. We hold that it does. But we affirm the judgment against the employee because we also hold that the trial court did not err in concluding that she failed to establish a prima facie claim of disability discrimination. We also affirm the award of attorney's fees against the employee and reject the employer's claim that it should have been awarded enhanced attorney's fees.


In 1981 the State of Alaska, Department of Natural Resources (DNR) hired Deborah Moody-Herrera (Moody) as a Photocopy Machine Operator I upon the referral of the State of Alaska, Division of Vocational Rehabilitation (DVR). Moody was promoted to Micrographics Equipment Operator I (MEO I) in 1982. The DNR section in which she worked produced and maintained all the maps of the state's land holdings. Moody's job involved photographing large plats showing ownership interests in state land.

In May 1989 DNR installed new equipment in Moody's workplace. Moody was required to learn to operate more computerized equipment than she had previously operated. She received about one week of training on the equipment, which was more training than the others in her section received. Soon after the new equipment arrived, DNR reclassified Moody as an MEO II, a position requiring her to perform at a higher level and work independently.

Bud Mayes supervised Moody until January 16, 1990. While he supervised her, Moody's evaluations were acceptable or better. Wendy Woolf supervised Moody for a month during Mayes's absence, and from January 16, 1990, to December 1990. Woolf immediately noted problems in Moody's job performance. These problems included tardiness; production backlog; excessive sick leave usage; failure to prioritize work tasks; failure to work independently; inability to use "PROFS," a computer program necessary to the job; and failure to keep up with her PROFS software account. Woolf also noted that Moody fell behind in work, wasted time, refused to seek computer support in the manner directed by her supervisor, left her work station with the phone off the hook so it would not be discovered that she was gone, and made numerous personal phone calls during work.

Marilyn Morris supervised Moody from December 1990 until Moody's termination. Morris noted that Moody refused to follow instructions on delivering items by mail rather than in person; refused to follow instructions on how to seek computer support; lost control and yelled at Morris; failed to follow written instructions on the use of the computer program; failed to follow written instructions on another occasion, thereby causing the destruction of historical records; and was absent during work hours. Morris progressively disciplined Moody by writing a letter of reprimand, a letter of warning, and a letter of suspension.

During periods when Moody was absent or unable to work in micrographics, another employee, Eleanor Magowan, successfully performed Moody's job in half the time.

Both parties agree and the superior court found that Moody has a substantial hearing disability. The superior court also found that Moody's hearing may have deteriorated during her DNR employment. Moody requested several accommodations during her employment. In August 1990 Moody requested written instructions which DNR apparently provided. When asked in October and November 1991 what further accommodations she needed, Moody stated that she just needed a professional work environment in which she could perform her job duties. In October 1991 DNR asked Moody to provide evaluations from her physicians indicating whether she was able to return to work and what, if any, accommodations were needed. Three physicians completed the evaluations, stating that Moody was able to return to work. Only one doctor recommended an accommodation--ear protection--which DNR apparently provided. On February 27, 1992, Moody requested that she be allowed to tape record a meeting with Morris. DNR Human Resources Manager Ellen Clothier (then Hazeltine) told Morris that taping was not appropriate. Although taping was not allowed, Moody apparently recorded part of the meeting. On March 30, 1992, Moody requested an interpreter. Morris consulted with Clothier, who contacted Moody's DVR counselor, Duane Mayes. DNR did not provide an interpreter, apparently because Mayes said that an interpreter would not be appropriate because Moody did not know American Sign Language.

During Moody's employment, DNR provided Moody with the following accommodations, special telephone accommodations, a fisheye mirror so she could see people entering her work area, an amplified fire alarm, other staff to assist Moody in evacuating the building during emergencies, ear protection, numerous written instructions on work procedures, special equipment training, and written expectations of job performance. DNR also: asked DVR counselor Mayes about the need for further accommodations, worked with Moody's union representatives, allowed family members to attend meetings about Moody's job performance, allowed nearly unlimited leave in 1991, asked Moody what additional accommodations she needed, offered her a job with simpler duties and responsibilities for the same pay and benefits in January 1992, provided additional training, and provided written reports on her progress.

Moody was fired on April 29, 1992. Moody then filed suit against DNR under the Alaska Human Rights Act, alleging that DNR discriminated against her on the basis of sex, parenthood, and physical disability. The superior court tried the case without a jury. Moody presented evidence only on the issue of disability discrimination. The superior court held that Moody had abandoned her other claims. Moody argued that DNR violated AS 18.80.220(a)(1) by "fail[ing] to adequately consider or make reasonable accommodations of her disabilities and, as a result, her employment with DNR was unlawfully terminated in April 1992."

The superior court disagreed and found that Moody's "work problems were not a product of DNR's alleged failure to reasonably accommodate [Moody], but were instead the product of her own attitude and personal problems and unhappiness." The court stated that it was

left with the distinct impression that the personality differences between [Moody] and her supervisors led [Moody] to rely on her disability as a manipulative lever in her relationship with them. For all the focus on disability in the discussion of this case, however, the court finds this really to be a case of an employee who failed in her performance not due to her disability but due to other factors in her life and personality.

The court entered judgment against Moody and awarded the State attorney's fees against her.

Moody appeals that decision and the award of attorney's fees against her. The State cross-appeals the denial of its request for enhanced attorney's fees.

A. Standard of Review

Whether AS 18.80.220 provides for a claim against an employer for failure to provide reasonable accommodation is a question of statutory interpretation to which we apply our independent judgment. 1 We will adopt the principles of law which are most persuasive in light of precedent, reason, and policy. 2

Whether Moody established her prima facie case is a mixed question of law and fact. 3 We review the court's factual findings under the clearly erroneous standard. 4 Questions of law, such as the determination of the elements of the prima facie case, are reviewed de novo. 5

We review the award or denial of attorney's fees for abuse of discretion. 6 Whether we should adopt the federal exception for attorney's fees assessments against losing civil rights plaintiffs is a question of law to which we apply our independent judgment. We will adopt the principles of law which are most persuasive in light of precedent, reason, and policy. 7

B. Is an Employer's Failure to Provide Reasonable Accommodation to a Disabled Employee Actionable under the Alaska Human Rights Act?

Alaska Statute 18.80.220 prohibits discrimination against disabled employees. 8 The Alaska Human Rights Act (AHRA), which includes AS 18.80.220, does not explicitly state that employers have a duty to provide reasonable accommodation to disabled employees. But the AHRA does not define the term "discriminate." Does a failure to provide reasonable accommodation to a disabled employee amount to "discriminat[ion] against a person in compensation or in a term, condition, or privilege of employment"?

Moody argues that employers owe a duty under the AHRA, just as they do under federal law, to reasonably accommodate disabled employees. She claims that a disability discrimination claim differs from a dissimilar treatment claim and that "[t]he failure to treat individuals with disabilities differently from similarly situated employees without disabilities is a violation of the duty to make reasonable accommodation." Moody implicitly claims that she therefore has a claim under the AHRA because her employer did not reasonably accommodate her disability.

Before determining whether DNR reasonably accommodated Moody's disability, we must first decide the threshold question implicated by...

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