Russell v. Municipality of Anchorage, S-1782

Decision Date09 October 1987
Docket NumberNo. S-1782,S-1782
Citation743 P.2d 372
Parties45 Empl. Prac. Dec. P 37,713 Debra M. RUSSELL, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
CourtAlaska Supreme Court

Allen M. Bailey, Ross, Gingras, Bailey & Miner, Anchorage, for appellant.

Jeffrey W. Cole, Asst. Municipal Atty., Jerry Wertzbaugher, Municipal Atty., Anchorage, for appellee.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

RABINOWITZ, Chief Justice.

The issue presented on appeal is whether the superior court properly dismissed Debra Russell's federal and state law discrimination claims against the Municipality of Anchorage (Municipality) as barred by Alaska's two-year tort statute of limitations. Specifically in question is whether the statute of limitations began to run in 1983, when the Municipality denied Russell admission to the police academy, or in 1985, when she first became aware of circumstances allegedly indicating that the Municipality's acts constituted illegal discrimination.

I. Facts and Proceedings Below.

Debra Russell applied to the Anchorage police department for employment as a police officer, and an agent of the department informed her in July 1983 that she had passed all the tests necessary for admission to the police academy. In August 1983, the department's personnel director told her that she was not selected for the August entering class at the academy because she was a "minority bump." The defendant Municipality concedes that Russell "lost her position to a [N]ative male as a result of a municipal affirmative action program which sought to hire [N]ative people."

On February 4, 1986, Russell filed this action in superior court, claiming that the Municipality had discriminated against her based on her sex in connection with her application for employment. She alleged violations of her rights under Alaska statutes providing for equal employment opportunity, sections of the Anchorage Municipal Code, and the federal civil rights statute, 42 U.S.C. § 1983, as well as several common law tort causes of action. 1

The Municipality moved to dismiss Russell's federal and state law claims as barred by the applicable two-year statute of limitations, AS 09.10.070. 2 Russell opposed the motion, arguing that she timely filed her claim because her cause of action for discrimination did not accrue until 1985 when she first had knowledge of the essential underlying facts, thus giving her until 1987 to file her complaint. She did not dispute the applicability of AS 09.10.070 but asserted that she did not know and could not reasonably have been expected to know that a "minority bump" constituted an illegal discriminatory action until approximately January 1985, when she began to investigate why the department had continually refused to hire her. 3 She further contended that she did not discover that unqualified minority candidates had been hired by the department until September or October 1985, when she was so informed by a Municipal Office of Equal Opportunity investigator, and that municipal ordinances protecting the confidentiality of the police department's personnel files prevented her from obtaining this information prior to that time. 4 The Municipality replied that Russell cannot avoid the running of the limitations period on this basis because she had access to the facts comprising the gravamen of her claims in 1983 and that all she "discovered" in 1985 was her belief that the Municipality's race-conscious decision to hire Native Alaskans in her place constituted illegal discrimination.

The superior court entered an order granting the motion to dismiss and entered a "final judgment" dismissing with prejudice specified paragraphs of Russell'scomplaint. 5 In its order granting the motion to dismiss the superior court found that (1) if the facts alleged therein were sufficient to make out a cause of action, Russell knew or should have known of the existence of these facts in August 1983; and (2) if, as alleged, Russell was better qualified than the Alaska Natives hired in her place, she knew or should have known that she was better qualified in August 1983. The court concluded that the "discovery rule" did not apply and that the AS 09.10.070 two-year statute of limitations applied without tolling. Russell subsequently appealed the superior court's order.

II. Final Judgment Rule.

The superior court's "final judgment" did not dispose of all of Russell's claims against the Municipality of Anchorage. Since the superior court did not expressly determine that there was no just reason for delay and did not expressly direct the entry of judgment, the "final judgment" and order of dismissal appealed from is not appealable. 6 Nevertheless, we have decided to treat the appeal as a petition for review and to grant the petition in order to prevent unnecessary delay. 7

III. Did the Superior Court Err in Dismissing Russell's Claims Pursuant to State and Federal Law as Barred Under AS 09.10.070?

Russell conceded below, and does not now argue to the contrary, that AS 09.10.070 governs both her state and federal law claims concerning unlawful discrimination. 8 Her argument as to both sets of claims is that the two-year period of limitations should not begin until 1985, when she allegedly discovered that Native Alaskan males less qualified than she had been admitted to the police academy, rather than when she was denied admittance in 1983. She contends that the "discovery rule" previously applied by this court and by the federal courts operates to delay accrual of her cause of action, and thus the commencement of the limitations period, because she could not reasonably have discovered all the facts essential to her cause of action--specifically, the hiring of Natives in her stead--until 1985 due to the Municipality's policy and practice of keeping its personnel files confidential. 9

In Gudenau & Co. v. Sweeney Ins., 736 P.2d 763, 766-67 (Alaska 1987), we said:

The statute of limitations ordinarily begins to run on the date on which the plaintiff incurs injury. W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts § 30, at 165 (5th ed. 1984)....

Our former practice has been modified by the adoption of the "discovery rule" method of tolling the operation of the statute of limitations. Greater Area, Inc. v. Bookman, 657 P.2d 828, 829-30 (Alaska 1982). Today the statute of limitations does not begin to run until the claimant discovers, or reasonably should have discovered, the existence of all elements essential to the cause of action. Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143, 144 (Alaska 1984).

Applying the discovery rule to Russell's section 1983 claim, as well as her state claims, we conclude that the superior court's dismissal should be affirmed. 10 In our view the superior court correctly determined that Russell should have known of the existence of the facts alleged as comprising her cause of action in 1983.

Under the discovery rule the relevant inquiry is the date when Russell reasonably should have known of the facts supporting her cause of action. See Greater Area Inc. v. Bookman, 657 P.2d 828, 829 (Alaska 1982). Ordinarily summary judgment on this issue would be inappropriate and a remand to the superior court would be required. 11 If, however, there are uncontroverted facts that indicate when Russell reasonably should have known that she had a cause of action, then this court can dispose of the question as a matter of law. 12 The parties do not dispute that Russell did not obtain actual knowledge of her displacement by Native Alaskan male candidates until 1985. However, upon being told that she was a "minority bump" from the police academy class, she had notice of facts "sufficient to prompt a person of average prudence to inquire," and thus should be deemed to have notice of all facts which reasonable inquiry would disclose. 13 Vigil v. Spokane County, 42 Wash.App. 796, 714 P.2d 692, 695 (1986). Although Russell contends that she could not have known of the alleged discrimination until 1985 due to the protected status of the Municipality's personnel records, her action in filing administrative complaints in 1984 and 1985 concerning her denial of admission to the academy attest to her awareness of the existence of the alleged discrimination before the expiration of the two-year limitations period (if deemed to commence in 1983). 14 Russell does not allege that she discovered any new facts between the date of the denial in 1983 and the date of these filings, or between 1983 and the date of filing this action, that caused her to delay.

Additionally, we hold that Russell's claims of fraudulent concealment by the Municipality of facts supporting her cause of action are without merit. "[A] party who fraudulently conceals from a plaintiff the existence of a cause of action may be estopped to plead the statute of limitations if the plaintiff's delay in bringing suit was occasioned by reliance on the false or fraudulent representation." 15 The settled rule is that the mere failure by a person to disclose a fact concerning a cause of action which arises against him does not suffice to toll the statute unless the defendant owed a duty of disclosure. 16

Establishment of estoppel generally requires the party seeking to assert it to show "that the other party made some misrepresentation, or false statement, or acted fraudulently, and that he reasonably relied on such acts or representations ... and due to such reliance did not institute suit timely." 17 Although "there can be circumstances where an inaction or silence combined with acts or representations can give rise to an appropriate situation calling for the application of the estoppel doctrine," id. at 632 n. 25, a plaintiff generally cannot invoke estoppel unless he has exercised due diligence in attempting to uncover the concealed facts. 18

The record in this case demonstrates that this is not an appropriate...

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4 cases
  • Felder v. Casey
    • United States
    • U.S. Supreme Court
    • 22 June 1988
    ...Wilson v. Garcia governs the timeliness of § 1983 suits brought in state as well as federal court. See, e.g., Russell v. Anchorage, 743 P.2d 372, 374-375, and n. 8 (Alaska 1987); Ziccardi v. Pennsylvania Dept. of General Services, 109 Pa.Cmwlth. 628, 634- 635, 527 A.2d 183, 185-186 (1987); ......
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    ...statute of limitations applies to claims such as this which are brought pursuant to AS 18.80.220. Russell v. Municipality of Anchorage, 743 P.2d 372, 374 and n.8 (Alaska 1987). Defendants argue that because plaintiff filed his complaint on October 30, 2019, any AS 18.80.220 claims occurring......
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    ...to have notice of all facts which reasonable inquiry would disclose." Id. (alteration in original) (quoting Russell v. Municipality of Anchorage, 743 P.2d 372, 376 (Alaska 1987)). Because the plaintiff in Mine Safety "did nothing to investigate his claim" within the limitations period, his ......

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