Jones v. State, Department of Corrections

125 P.3d 343, 2005 Alas. LEXIS 173, 97 Fair Empl. Prac. Cas. (BNA) 914, 2005 WL 3444731

• Court: Alaska Supreme Court
• Decided: December 16, 2005
• Docket: S-10743
• Status: Published

Opinions

OPINION

BRYNER, Chief Justice.

I. INTRODUCTION

Floyd Ainsworth, a correctional officer, wrote a racially and sexually offensive memorandum terminating inmate Raymond Jones’s job as a prison barber. Jones sued Ainsworth and the Alaska Department of Corrections (collectively, the state), claiming intentional infliction of emotional distress (IIED) and unlawful termination from.his prison-barber job because of race or sex, in ' violation of the Alaska Human Rights Act. The superior court dismissed Jones’s IIED claim on summary judgment but allowed his human-rights-act claim to proceed to trial. Before trial, the state made an offer of judgment to Jones, which he refused. At trial, the court instructed the jury that Jones could only claim emotional damages for emotional distress suffered after his termination occurred. The jury found that Jones had been unlawfully terminated, but awarded him only a small amount of damages, specifying that its award was for emotional distress. The court awarded costs and attorney’s fees to the state, finding that its pretrial offer of judgment exceeded the jury’s verdict. Jones appeals, claiming that the superior court erred in dismissing his IIED claim, in instructing the jury on the scope of Jones’s right to recover emotional damages, and in awarding attorney’s fees to the state. We affirm, concluding that Jones has failed to show prejudice from any error in dismissing his IIED claim, that the jury was properly instructed on Jones’s right to emotional damages, and that the court properly awarded the state costs and fees for prevailing on its offer of judgment.

II. FACTS AND PROCEEDINGS

Raymond Jones, an African-American, was an inmate assigned to Spring Creek Correctional Center. He worked as a barber, cutting other inmates’ hair for a nominal salary. Correctional Officer Floyd Ainsworth was Jones’s supervisor.

On August 4, 1997, Ainsworth gave Jones the following memo:

This memorandum is to inform you, that you have been fired as an APS barber/rec worker. You are a lop, lame, sissy, cake-boy, and your girl is a mud-duck. You are in fact a no talented bum. You listen to Vanilla lee, in your 1975 AMC Pacer, and that’s, just not cool. In fact one of the brother’s [sic] told me that you were white, and just had a really good tan. Maybe the kitchen is looking for a new pots and pans man!

Jones interpreted this memo as containing sexual and racial slurs and as being intended to terminate his employment.¹ He stopped reporting for work and kept the memo in his possession but did not report it. The memo was discovered by correctional officers after Jones’s transfer to Wildwood Correctional Center in July 1998. Its discovery triggered a departmental investigation into Ainsworth’s conduct and eventually led to his termination.

Jones later sued the state, alleging that the August 4 memorandum had intentionally inflicted emotional distress and had violated the Alaska Human Rights Act² by terminating Jones’s employment as a prison barber for racial and sexual reasons.³

The state moved for summary judgment on Jones’s claims. Regarding the IIED claim, which required proof of outrageous conduct and serious emotional harm, the state argued that Jones’s claim was deficient because the August 4 memo was at most an insult, rather than an outrageous act, and because Jones’s general assertion that the memo had caused him to feel “anxious and upset” would not support a finding of serious emotional harm. In response, Jones insisted that “racial and sexual indignities such as those cast at Mr. Jones are not ‘mere’ insults, annoyances or trivialities.” He also offered to present additional evidence concerning the seriousness of his emotional injuries.

After hearing oral argument on the summary judgment motion, the superior court dismissed' Jones’s IIED claim, finding that he had failed to offer any evidence of severe emotional distress. However, the court denied the state’s motion for summary judgment on Jones’s human-rights-act claim, finding sufficient evidence to warrant a trial on whether the memo wrongfully terminated Jones’s employment as a prison barber because of sex or race.

Before trial the state made Jones a $12,000 offer of judgment. Jones rejected the offer and the case proceeded to jury trial on the human-rights-act claim. At the conclusion of the trial, over Jones’s objection, the court instructed the jury that Jones “is not entitled to emotional damages that he is claiming occurred before he received the memorandum from Floyd Ainsworth,” and that the jury could “only consider emotional damages that may have occurred after Mr. Jones received the memorandum.”

The jury returned a special verdict finding that the August memorandum had violated the human rights act by terminating Jones’s employment for impermissible racial or sexual reasons. But the verdict found that this violation had caused Jones to suffer only one kind of compensable injury — emotional suffering; and it awarded him just $3,900 in emotional damages.

Because its pretrial offer of judgment exceeded the jury’s verdict, the state moved for an award of costs and attorney’s fees. Jones filed a competing claim, seeking costs and fees as the prevailing party. The court declared the state to be the prevailing party by reason of its pretrial offer of judgment and awarded it $16,902 in costs and attorney’s fees. Jones appeals.

III. DISCUSSION

A. Jones’s IIED Claim

The elements of the tort of IIED require that the defendant intentionally or recklessly engage in extreme or outrageous behavior causing severe emotional distress or bodily harm to the plaintiff.⁴ Before submitting an IIED claim to the jury, the trial judge must determine “whether the severity of the emotional distress and the conduct of the offending party warrant a claim of [IIED].”⁵ If this threshold test is conducted at the time of summary judgment, the court must afford the plaintiff all favorable factual inferences.⁶

The superior court considered Jones’s evidence and granted summary judgment for the state. Without making a finding as to whether the memorandum amounted to extreme or outrageous conduct, the court decided that Jones “has failed to establish that there is a genuine issue of material fact as to whether there was severe emotional distress .... There doesn’t appear to be any assertion that there was distress as a result of Mr. Ainsworth giving the memo to Mr. Jones.”

Jones contends that because he presented sufficient evidence to establish severe distress, the superior court improperly granted summary judgment against him on his IIED claim. Jones urges us to re-examine the evidence before the trial court at summary judgment, maintaining that he “was subject to racial and sexual insults that would normally result in fisticuffs in a prison environment ... and he testified under oath regarding his fear.” Arguing from cases in which we have previously recognized that “a wrongful discharge may give rise to an intentional infliction of emotional distress claim,” Jones insists that the distress inflicted by Ainsworth’s memorandum should be deemed sufficient to survive summary judgment.

But even if Jones presented enough evidence of serious emotional distress to prevent the superior court from dismissing his IIED claim on summary judgment, Jones’s argument would still be unavailing unless Jones further showed that the court’s erroneous ruling caused actual prejudice.⁷ Here, the state asserts that any error was harmless because the jury’s award for emotional damages on Jones’s human-rights-act claim covered all the emotional damages that Jones could have received on his IIED claim.⁸

Our cases show that improperly dismissing a claim will be harmless error when the claimant manages to recover the same damages by pursuing an alternative theory. In Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, we held that the plaintiff had not suffered prejudice from dismissal of his fiduciary fraud claim, because he was able to present the same evidence and seek punitive damages under his surviving claims.⁹ Under this rule, if the jury verdict on Jones’s human-rights-act claim compensated Jones for all the damages he would have been entitled to recover on his claim for IIED, then he suffered no actual prejudice, even assuming that his IIED claim was erroneously dismissed before trial.

We have recognized that damages allowed under the Alaska Human Rights Act, which prohibits discriminatory acts by the state,¹⁰ are essentially tort damages, thus “authorizing] the courts to compensate a plaintiff for the injury caused by the defendant’s wrongful breach.”¹¹ Accordingly, when a plaintiff proves a violation under the act, actual damages are available for mental anguish.¹² Here, Jones’s human-rights-act claim specifically alleged that Ainsworth’s August 4 memorandum terminated his prison job and that the termination violated the act because the memo was motivated by impermissible considerations of race and sex. The jury expressly found these allegations to be true and awarded monetary damages for his emotional anguish; indeed, the only money the jury awarded was for the emotional damages that Jones experienced because of the August 4 memo.

Like his human-rights-act claim, Jones’s IIED claim was based on the August 4 memo. In accusing Ainsworth of intentionally inflicting emotional distress, Jones’s complaint focused solely on the emotional damages he actually suffered as a result of receiving the memo.¹³ Specifically, Jones’s complaint alleged that the state was liable for IIED because “[t]he memorandum notifying Raymond Jones of his employment termination was racially and sexually offensive.” Nothing in Jones’s subsequent summary judgment pleadings or his counsel’s oral arguments on the state’s summary judgment motion remotely suggested that his IIED claim was grounded on conduct preceding the August 4 incident.

In his opposition to summary judgment, Jones claimed that a “single event of racial and/or sexual insult” — Ainsworth’s memo— sufficed to bring his IIED claim to the jury. He explained that his human-rights-act claim was likewise based on his discriminatory termination, the “los[s] of his barber job.” At the oral argument on the summary judgment motion, Jones’s counsel stated, “Regarding the Alaska Human Rights Act ... it seems to hinge on whether or not Mr. Jones lost his job as a barber as a result of or at the same time as delivery of this memorandum.” And he explained that Jones’s IIED claim was premised on “[t]he one incident with the derogatory, insulting and somewhat intimidating” memo.

Although Jones’s deposition did include a brief description of a separate incident in which Ainsworth apparently threatened Jones with a broomstick, Jones failed to cite, discuss, or otherwise call the superior court’s attention to that incident as having any potential bearing on his IIED claim. Instead, as already mentioned, he limited his summary judgment arguments concerning that claim to Ainsworth’s August 4 memo and the emotional distress ensuing from that memo. Nor did Jones ever voice any broader theory of his IIED claim as a potential reason for reconsideration.

Considering the manner in which Jones framed and presented his IIED claim to the superior court, we find no sound basis to construe the claim as seeking any emotional damages beyond those that the jury actually considered in deciding his human-rights-act claim: the emotional damages attributable to Ainsworth’s August 4 memo. Although the summary judgment record included some evidence of pre-termination conduct by Ains-worth- — the broomstick incident — that arguably might have allowed Jones to expand his IIED claim, Jones’s failure to assert this broader theory of IIED below precludes us from considering it in our harmless error analysis here.

Under these circumstances, we must accept Jones’s theory of IIED as he actually asserted it in arguing his case on summary judgment, not as he might have reshaped the theory had his claim eventually proceeded to trial.¹⁴ Moreover, even if the more expansive view of Jones’s IIED claim could properly be raised for the first time on appeal, we would still decline to consider it because Jones has not raised it in his briefing. Jones does refer to the broomstick incident briefly in the section of his argument discussing his human-rights-act claim — a separate issue that we address below. But he does not argue this evidence — or even mention it — -in his argument challenging the dismissal of his claim for IIED. Jones’s opening brief makes no effort to show how his IIED claim might have encompassed a broader range of emotional damages than the damages that the jury could have awarded on his claim for violating the Human Rights Act. Even though the state expressly argues in its ap-pellee’s brief that dismissal of Jones’s IIED claim amounted to harmless error, Jones’s reply brief makes no attempt to explain why he would have been entitled to claim additional emotional damages for his IIED claim.

In short, both below and on appeal, Jones has consistently chosen to focus his IIED claim on a single incident of intentionally inflicted emotional harm: the August 4 memorandum that effectively terminated his prison employment. In his arguments addressing that claim, he has never asserted or argued that he based his IIED claim on any other intentional and outrageous act. Nor has he ever claimed or suggested a right to recover IIED damages suffered because of another incident.¹⁵ This same incident, and its resulting injuries, formed the crux of his claim under the Alaska Human Rights Act as well. Since Jones sought the same emotional distress damages on both claims, the claims overlapped. The special verdict rendered under the act establishes that Jones was in fact compensated for the emotional injuries underlying both claims.

Even if any error occurred in dismissing his IIED claim, then, the error appears to be harmless.

B. Jury Instruction No. 14.5

Over Jones’s objection, the superior court gave Instruction No. 14.5 to the jury:

Mr. Jones is not entitled to emotional damages that he is claiming occurred before he received the memorandum from Floyd Ainsworth dated August 4, 1997. If you find that Mr. Jones was terminated by the memorandum you may only consider emotional damages that may have occurred after Mr. Jones received the memorandum.

Jones argues on appeal that this instruction misconstrued the law: that his claim under the act allowed him to recover for emotional damages caused by Ainsworth before the August 4 memo that terminated Jones’s employment.¹⁶ We disagree.

The Human Rights Act enabled Jones to recover damages from the state for any denial of “funds, services, goods, facilities, advantages, or privileges because of race, religion, sex, color, or national origin.”¹⁷ Here, Jones alleged, and the jury found, that the state had violated the act because of Ainsworth’s August 4 memo, which effectively terminated Jones’s job as a prison barber based on impermissible considerations of race and sex. As the superior court properly reasoned in deciding to give the challenged jury instruction, the plain terms of the act only allowed Jones to recover those damages occurring “because of’ the August 4 memo:

[T]he damages have to stem from the act itself that forms the underlying basis of the complaint. And the underlying basis of the complaint, the cause of action, is the termination and the damages that would come after that, not preceding it.

Moreover, Instruction No. 14.5’s express prohibition of an award for emotional damages occurring before Jones was terminated accords with other, more general, instructions received by the jury. For example, Instruction No. 9 advised the jury that Jones could be awarded damages for emotional distress “from the date of any violation of his rights to the date of trial.”¹⁸ And under Jury Instruction No. 4, the specific violation Jones needed to prove to establish a violation of his rights was his termination from the prison job by Ainsworth’s racially and sexually motivated memo.¹⁹ Jones did not object to these instructions below and does not challenge them now. Because these instructions defined Jones’s right to recover emotional damages in essentially the same way as Instruction No. 14.5, albeit less explicitly, we see no reason to conclude that the jury would have reached a different verdict, even if the superior court had yielded to Jones’s objections and denied the state’s request to give Instruction No. 14.5.²⁰ We thus find no merit in Jones’s challenge to this instruction.

C. Attorney’s Fees

Under Alaska Civil Rule 68, a party may make an offer of judgment “[a]t any time more than 10 days before the trial begins.”²¹ If the judgment that a single offeree achieves is at least five percent less favorable to the offeree than the offer, the offeree “shall pay all costs as allowed under the Civil Rules and shall pay [a percentage of the] reasonable actual attorney fees incurred by the offeror from the date the offer was made.”²²

Here, Jones declined the state’s pretrial offer of judgment for $12,000 “inclusive of all prejudgment interest, costs and attorney[’]s fees.” After the jury awarded Jones $3,900, the state moved for costs and fees under Rule 68. Upon comparing the offer to the judgment, the trial court granted the state’s motion, finding that the offer was sufficient to entitle the state to costs and attorney’s fees — even with prejudgment interest, attorney’s fees under Alaska Civil Rule 82 and allowable costs added to the judgment.²³ The state claimed Rule 68 fees of $24,089.60. From this amount the court offset Jones’s recovery, yielding a net judgment for the state of $16,902.60.

Jones appeals this award, arguing that his total judgment should have been more favorable than the state’s offer. Jones advances three theories to support his claim. Jones first suggests that the state’s offer of judgment was deficient because the state extended the offer “nearly two and a half years after the filing of Appellant’s complaint.” But Rule 68(b) allows an offer of judgment to be made “more than 10 days before the trial begins.” The state’s offer complied with the rule’s requirement.

Jones next asserts that, as a successful civil rights plaintiff, he was entitled to recover his actual fees under 42 U.S.C. § 1988(b), a federal provision authorizing courts to award prevailing civil rights plaintiffs their reasonable attorney’s fees. But Jones pursued his claim under Alaska’s Human Rights Act, which has no comparable provision. In Moody-Herrera v. State, Department of Natural Resources, we held that Civil Rule 82 applies to civil rights plaintiffs who sue under Alaska’s act.²⁴ We declined to incorporate the federal model in our rules, noting that awards of attorney’s fees under our rules “follow[ ] a fundamentally different principle.”²⁵ Moody-Herrera controls our decision here.

Finally, Jones claims that, in determining whether his total award exceeded the state’s offer, the court should have calculated his fees on an enhanced basis, using the factors listed in Civil Rule 82(b)(3). But Jones does not discuss how these factors apply to his case and fails to explain why the superior court’s calculation of his fees was manifestly unreasonable.²⁶

We thus find no reason to disturb the superior court’s award of costs and fees.

IV. CONCLUSION

We AFFIRM the superior court’s judgment.

CARPENETI, Justice, concurring.

FABE, Justice, dissenting.

1 . Jones offered the following interpretation of the memo:

A "sissy” and "cake-boy” are each common offensive terms for homosexual.... A “mud-duck” is an offensive [term] for an individual who engages in anal intercourse though Plaintiff is of the belief that this is simply a reference to the attractiveness of his girlfriend.... "Vanilla Ice" was a white entertainer who had adopted a superficial and stereotypical black persona in his performances and who was widely denounced by the [A]frican-[A]merican community as a charlatan and opportunist. The accusation of really being "white" with a "really good tan” was another racial affront attacking Mr. Jones's own racial and cultural identity through demeaning characterization. ... The reference to driving a "1975 AMC Pacer” is a suggestion that Mr. Jones is worthy of only the least desirable of material objects while the suggestion that he seek employment as a “pots and pans man” is an insulting characterization of [A]frican-[A]mericans as worthy of only menial jobs.

2 . See AS 18.80.255.

3 . Jones advanced several other claims that are not at issue here and thus require no discussion.

4 . Richardson v. Fairbanks AT. Star Borough, 705 P.2d 454, 456 (Alaska 1985).

5 . id.

6 . Lincoln v. Interior Reg'l Hous. Auth., 30 P.3d 582, 589 (Alaska 2001).

7 . See Alaska R. Civ. P. 61; Dobos v. Ingersoll, 9 P.3d 1020, 1024 (Alaska 2000) (holding that under the harmless error test, burden is on appellant to show prejudice).

8 . It is well settled that the trial court's choice of a particular legal theory does not define the scope of our appellate review and that we may uphold the trial court’s judgment on any legal theory supported by the record — even one that the trial court expressly rejects. We have often relied on this rule to resolve appeals on the most efficient available ground. See Alaska Trademark Shellfish, LLC v. State, 91 P.3d 953, 956-57 & n. 11 (Alaska 2004) (citing cases).

9 . 828 P.2d 745, 760 (Alaska 1992).

10 . AS 18.80.255 reads, in relevant part:

It is unlawful for the state or any of its political subdivisions

(1) to refuse, withhold from, or deny to a person any local, state, or federal funds, services, goods, facilities, advantages, or privileges because of race, religion, sex, color, or national origin.

11 . Loomis Electronic Protection, Inc. v. Schaefer, 549 P.2d 1341, 1344 (Alaska 1976) (quoting Curtis v. Loether, 415 U.S. 189, 194-96, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974)).

12 . Johnson v. Alaska State Dep’t of Fish & Game, 836 P.2d 896, 915 (Alaska 1991) ("[Rjecovery of compensatory damages for mental anguish [is for] 'all those damages directly and naturally resulting, in the ordinary course of events, from the injury in question.’ ”) (quoting Mitchell v. Seaboard Sys. R.R., 883 F.2d 451, 453 (6th Cir. 1989)).

13 . Jones's IIED claim did not include a claim for punitive damages.

14 . Cf. Still v. Cunningham, 94 P.3d 1104, 1111 (Alaska 2004) ("Neither the trial court nor the movants should be required to guess whether factual evidence might support defenses that are not identified or relied on.").

15 . The dissent criticizes this opinion as seeming to "fault Jones for focusing his presentation in the trial court on the emotional distress damages he suffered as a result of the August 4 termination memo." Dissenting Op. at 359-360. But we ascribe no fault to Jones; we simply base our decision on the arguments that he has chosen to advance on this point.

16 . We exercise de novo review in considering challenges to a trial court's rulings on jury instructions. John’s Heating Serv. v. Lamb, 46 P.3d 1024, 1030 (Alaska 2002).

17 . AS 18.80.255(1).

18 . Juiy Instruction No. 9 provided:

Mr. Jones also makes a claim for past emotional distress. If you find that Mr. Jones's rights under the Alaska Human Rights Act were violated, you may award him a fair amount to compensate for emotional distress caused by that injury.

Such an award should fairly compensate Mr. Jones for actual emotional distress from the date of any violation of his rights to the date of trial[J

19 .According to Instruction No. 4, "[t]o establish that his rights were violated under that Act,” Jones had to prove:

(1) ... that he was terminated from his position as a barber in connection with the memorandum ... given to him by Floyd Ainsworth; and

(2) ... that racial or sexual discrimination was a motivating factor in the decision to terminate his employment.

20 . Furthermore, we note that Instruction No. 14.5 did not completely bar Jones from relying on evidence of Ainsworth's hostile or menacing pre-termination conduct toward Jones. To the extent that this pre-termination conduct might have made Jones more vulnerable to emotional distress, thus heightening or prolonging the distress that he suffered because of the August 4 memo, the pre-termination conduct would have been relevant. In our view, Instruction No. 14.5 would not have precluded its consideration.

21 . Alaska R. Civ. P. 68(a).

22 . Id. at (b). The percentage of fees to be paid under the rule is determined by a sliding scale that varies depending on how far in advance of trial the offer was made. Id.

23 . See Steiner v. Farnsworth, 601 P.2d 266, 270 n. 4 (Alaska 1979) (describing proper method for comparing offer of judgment to offeree’s judgment).

24 . 967 P.2d 79, 89-90 (Alaska 1998).

²⁵

26 . On issues involving enhancement of fees under Rule 82(b)(3), we review only to determine if the trial court's decision was manifestly unreasonable. Glamann v. Kirk, 29 P.3d 255, 265-66 (Alaska 2001) (citations omitted). Here, although Jones did submit a conclusory discussion of the enhancement factors to the superior court, that discussion provides no meaningful basis for concluding that the superior court’s award of fees was manifestly unreasonable.