Mahan v. Arctic Catering, Inc.

133 P.3d 655, 2006 Alas. LEXIS 46, 2006 WL 1045497

• Court: Alaska Supreme Court
• Decided: April 21, 2006
• Docket: S-11184
• Status: Published

Opinions

OPINION

BRYNER, Chief Justice.

I. INTRODUCTION

Bonita Mahan worked for Arctic Catering on two occasions: once in 1999 and again in 2000. Mahan claims that during her first period of work, two of her supervisors sexually harassed her. During her second period of work, in 2000, Mahan was fired after working only ten days. Nearly two years later Mahan sued Arctic; claiming sexual harassment and wrongful termination. The superior court granted Arctic summary judgment, dismissing Mahan’s claims for sexual harassment because they were time-barred, and dismissing her wrongful termination claim because it was unsupported. Mahan appeals, challenging these ruling's. We affirm, holding that Mahan presented no evidence of harassment occurring within the statutory time limit and failed to raise any genuine 'issues of material fact supporting her claim for wrongful termination.

II. FACTS AND PROCEEDINGS

Bonita Mahan worked as an at-will employee for Arctic Catering on two separate occasions. She first worked as a housekeeper at the Badami camp on the North Slope from January 25, 1999, until March 11, 1999. Mahan’s supervisors there were Doug Schneider and Ricardo Gobaleza. While she was at Badami, Mahan claims, Gobaleza made several sexual comments to her; she consistently rejected his sexual advances. Mahan alleges that she complained about Gobaleza to Todd Harris, Arctic’s operations manager, but 'Harris reacted by joining in the harassment. Mahan quit her job with Arctic on March 11, 1999, because of a rash that she suffered after her skin reacted to laundry soap and because the person she was filling in for returned to work.

Arctic rehired Mahan the following year, and she began work at the Alpine camp on March 5, 2000. On March 16, 2000, Mahan’s supervisor, Scott Laney, fired her, stating that she could' not perform “necessary duties of her position.”

On March 14, 2002, Mahan filed a complaint in the superior court against Arctic, Gobaleza, and Harris for sexual harassment and wrongful termination.¹ Arctic moved for summary judgment, asserting that Ma-han’s claim for sexual harassment was barred by the statute of limitations. Arctic further asserted that Mahan failed to present any evidence to support her claim for wrongful termination. The superior court dismissed Mahan’s sexual harassment claim as untimely, finding that a sexual harassment claim must be brought within two years of the harassment’s occurrence and that Mahan had alleged no act of harassment occurring less than two years before March 14, 2002 — the date she filed her complaint. The court also dismissed Mahan’s wrongful termination claim, finding that she had failed to present any evidence tending to show that Arctic terminated her for improper or pre-textual reasons.

Mahan appeals.

III. DISCUSSION

A. Standard of Review

A trial court may grant a motion for summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.² We review de novo a trial court’s order granting summary judgment,³ viewing all reasonable inferences in the light most favorable to the non-moving party⁴ and considering “affidavits, depositions, admissions, answers to interrogatories and similar material to determine ... whether there are any ... triable genuine issues of material fact.”⁵

B. Sexual Harassment Claim

Alaska law prohibits an employer from discriminating against a person because of the person’s sex.⁶ We have held that this law prohibits sexual harassment against employees.⁷ Alaska Statute 09.10.070 requires that claims for sexual harassment be brought within two years of the wrongful conduct’s occurrence.⁸ The two-year limit starts when a party knows or should have known of a claim — usually the date that the alleged incident occurs.⁹ Mahan filed her claim on March 14, 2002. Barring some basis for extending the statutory period, then, her sexual harassment claim would be limited to acts occurring wdthin the two years preceding this filing date.

Mahan testified in her deposition that almost all the incidents of sexual harassment occurred at Arctic’s Badami camp during her first period of employment — between January 25 and March 11, 1999. She stated that Richard Gobaleza first made sexual comments to her soon after he began working as her supervisor at Badami in February 1999. Mahan claimed that she eventually told Todd Harris, Arctic’s operations manager, about Gobaleza’s comments, “but [he] seemed like he didn’t care.” According to Mahan, Harris began making sexual comments to her as well, and the harassment by both men continued until Mahan left Badami on March 11. Because this alleged harassment all occurred more than two years before Mahan filed her complaint, her sexual harassment claim was time-barred to the extent that it was based on the Badami camp incidents.

Mahan did describe one incident of possible sexual harassment by Gobaleza that occurred at Alpine camp during her second period of employment. She testified at her deposition that when Gobaleza first saw her at Arctic, he hugged her and asked how she was doing. When asked at the deposition if she thought this conduct was inappropriate, Mahan initially insisted that she was unable to respond, saying, “I don’t know how to answer that question,” “I don’t know,” and “I can’t answer.” She then added, “I guess, when he rubbed his hand down by my bra strap, when he went to give a hug, that’s inappropriate; if he was just giving me a hug, that’s not.” In a supplemental affidavit filed two months after her deposition, Mahan specified that this incident occurred “at least seven days prior to March 16, 2000” — that is, sometime before March 9, 2000.

In responding to a written interrogatory before testifying at her deposition, Mahan also had claimed to remember a sexually harassing remark that Harris made to her one morning at Alpine camp; but she could not pin this incident to any specific date. Later, at her deposition, Mahan did not mention this incident and recalled only one episode of possible sexual harassment at Alpine: Gobaleza’s hug. Although Mahan testified that she remembered seeing Harris at Alpine camp the day she was fired and that she thought he had been there earlier as well, she acknowledged: “But I can’t remember how many days or anything.” When asked if Harris said or did anything at Arctic that she considered harassment, Mahan replied, “I can’t remember right now. Whatever I had put on the paperwork, that’s what it was.” In testifying about the difficulties at Alpine that led up to her termination, Mahan did not claim that any new acts of harassment at Alpine contributed to her firing; to the contrary, she specifically attributed her firing to the harassment she had experienced the year before at Badami: “I was terminated because of what happened in the past, at Bada-mi. ... Because I was sexually harassed by Todd Harris and by Ricardo. And I guess they — it reminded them of it every time they’d see me anyplace else.” Although Ma-han’s post-deposition affidavit specified that Gobaleza’s hug occurred before March 9, 2000, the affidavit omitted any mention of her pre-deposition claim that Harris had made a sexually harassing comment to her at Alpine.

Even construing the totality of this evidence in Mahan’s favor for summary judgment purposes, we find no substantial evidence of any incident of sexual harassment occurring within the two-year period before March 14, 2002, the date Mahan filed her complaint. By Mahan’s own account, the Gobaleza “hug” occurred sometime before March 9, 2000 — several days outside the two-year statutory limit. Mahan’s initial interrogatory responses included an additional claim that Harris made a sexually harassing remark to her at Alpine. But Mahan acknowledged that this remark occurred on some “date unknown.” At her subsequent deposition, Mahan could not recall this allegation and she provided no further information about it in her supplemental affidavit. Given these circumstances, we think that it would be sheer speculation to assume that Harris’s alleged comment at Alpine occurred sometime within the three-day span between March 14, 2000 (the outside limit of the statutory filing period), and Mahan’s termination on March 16, 2000.

In fact, Mahan does not seriously contest this point. She insists instead that because her case involves a continuous course of “severe and pervasive sexual harassment,” the continuing violations doctrine resurrects her claim. Under this doctrine, certain patterns of ongoing discriminatory conduct can preserve a sexual harassment claim that might otherwise be time-barred.¹⁰ To benefit from this theory, though, “a plaintiff must first demonstrate that some discriminatory act occurred within the limitations period. The plaintiff must then show that the timely filed claim — based upon this act within the limitation period — is closely related to the otherwise time-barred claims.”¹¹ Upon making this showing, the plaintiff can use evidence of earlier events to prove the defendant’s liability for the acts within the statutory period.¹²

But here, as we have already mentioned above, Mahan has failed to show any acts of sexual harassment occurring within two years of her complaint. And the only evidence of other discriminatory acts she offers is the evidence she relies on to support her wrongful termination claim. Because Ma-han’s sexual harassment claim ultimately depends on the same evidence as her claim for retaliatory discharge, we turn to the discharge claim.¹³

C. Wrongful Termination Claim

Mahan’s complaint separately advanced a claim against Arctic for wrongful termination, alleging that the company violated the Alaska Human Rights Act¹⁴ by firing her on March 16, 2000, in retaliation for opposing Gobaleza’s and Harris’s earlier acts of sexual harassment. In considering retaliatory discharge claims under the Act, we apply the “distinction between ‘pretext’ and ‘mixed motive’ cases” that federal courts use in enforcing the federal Civil Rights Act.¹⁵ Although Mahan advances her retaliatory discharge claim primarily as a “pretext” case, we will consider her claim under both theories.

In a pretext case, we apply the same three-part framework used under federal law.¹⁶ First, the plaintiff must establish a prima facie case for retaliatory discharge. To meet this standard, Mahan would need to “show that (1) she engaged in [a protected activity]; (2) her employer subjected her to adverse employment action; [and] (3) there was a causal link between the protected activity and the employer’s action. Causation sufficient to establish a prima facie case of unlawful retaliation may be inferred from the proximity in time between the protected action and the allegedly retaliatory discharge.” ¹⁷ Once the plaintiff establishes a prima facie case, the burden in a pretext case shifts to the employer to show a legitimate, non-retaliatory reason for the discharge.¹⁸ To do so, the employer must produce admissible evidence that would allow a trier of fact to conclude that the employer’s decision was not “motivated by discriminatory animus.”¹⁹ If the employer offers evidence that rebuts the employee’s prima facie case, “the burden of proof shifts back to the employee to show that the employer’s explanation is a pretext for retaliation.”²⁰

Here, Mahan contends that her evidence established a prima facie case of retaliatory discharge. She maintains that her evidence showed that she engaged in protected activity by refusing Harris’s and Go-baleza’s sexual advances, and that Arctic fired her for engaging in this protected activity. More particularly, Mahan asserted at her deposition that her supervisors at Arctic set her up to be fired by forcing her to work harder than other workers and assigning her to do unpleasant jobs: “It’s just the way I was treated. Whenever they looked at me, I was — they piled extra work on my shoulders every time, extra stuff, that the other housekeepers didn’t have to do.” Mahan theorized that she was treated this way, and was ultimately fired, because of the sexual harassment that had occurred during her first period of employment: “I was terminated because of what happened in the past, at Badami.”

Arctic responds that no genuine issue of material fact exists on the issue of pretext, because there was uncontroverted evidence showing that Arctic had legitimate reasons to terminate Mahan’s employment and because Mahan failed to produce any evidence tending to show that these reasons were a pretext. Specifically, Arctic points to record evidence demonstrating that Mahan was unable to perform her work because she continually broke out in a rash when she handled laundry. Arctic also points to undisputed evidence that Mahan received verbal reprimands for fighting with other workers. According to Arctic, this evidence gave Mahan the burden of offering proof that her firing was actually a pretext — a burden that, in Arctic’s view, Mahan failed to carry.

Arctic’s argument is persuasive. As an initial matter, we note that Mahan’s own testimony leaves little dispute as to the existence of facially legitimate, non-retaliatory reasons for her termination. Mahan herself acknowledged that she had developed a rash on her arms that precluded her from doing the work she had been told to do in the laundry. She further acknowledged having problems meeting her supervisors’ demands — “I had five bosses that [were] trying to tell me what to do, and ... just — I couldn’t handle it.” And she admitted that during her short tenure at Alpine camp she received two verbal reprimands for fighting with other workers.

Because Arctic supported its summary judgment motion with ample evidence of legitimate, non-discriminatory reasons for Mahan’s discharge, Mahan had the burden of producing admissible evidence sufficient to raise a genuine issue of fact supporting her theory that these reasons were merely a pretext.²¹ Mahan’s burden required her to offer something more than “unsupported assumptions and speculation.”²² In French v. Jadon, Inc., for example, we held that summary judgment was appropriate when an employer produced evidence showing that it fired its employee because she was unreliable, and the employee responded by presenting nothing more than her own subjective belief that the employer’s asserted ground for her firing was merely a pretext.²³

Here, as in French, the claim of pretext is based on nothing more than the claimant’s “unsupported assumptions and speculation.” ²⁴ Relying on her deposition testimony, Mahan asserts that Arctic gave her extra work and then used her inability to handle the workload as a pretext to fire her: Arctic’s actual motive, Mahan insists, was to get back at her for refusing to have sex with Gobaleza and Harris in 1999. But while Mahan offered her subjective opinion that she had been treated unfairly, she presented no solid evidence to show that she actually received unusually burdensome and unequal work. Mahan testified that her supervisors “piled work on [her] shoulders”; and she expressed the conclusory view that she had not been hired to do the work she was given. But she provided no factual details to flesh out these bare allegations; she described no concrete examples of conduct by Arctic to substantiate her perception that she received more work than other housekeepers; and she presented no other factual information tending to show that other housekeepers got better treatment.

More important, Mahan offered nothing but her own subjective, after-the-fact impressions to establish the link that she assumed must have existed between her extra workload and the prior sexual harassment. At her deposition, Mahan gave no testimony suggesting a close temporal or other logical link between her firing in March 2000 and the protected conduct that she herself claimed to be the cause of Arctic’s retaliation — her resistence to Gobaleza’s and Harris’s sexual advances the year before at Ba-dami. She insisted that she “believe[d]” that what happened in Badami “had a lot to do with” her firing; and she said that she “guess[ed]” that her presence at Alpine must have reminded Gobaleza and Harris of what had happened a year before at Badami. Yet when pressed to say why she believed this, Mahan simply responded, “Because I just do.” When asked how the supervisors who actually fired her at Alpine knew of the sexual harassment that occurred the previous year at Badami, Mahan replied, “Apparently, [Harris and Gobaleza] must have talked to them. I don’t know.” At the same time, Mahan readily acknowledged, “Maybe I’m wrong.”

Although Mahan did describe one specific incident in 2000 that she apparently viewed as sexually harassing — the incident in which Gobaleza greeted her with a hug upon first seeing her back on the job at Alpine — she did not claim that this incident prompted her to take any action that could reasonably be construed as protected conduct — conduct such as resisting Gobaleza’s efforts to hug her or reporting his actions to her supervisors. Absent some evidence that Gobaleza’s hug prompted Mahan to engage in protected conduct, the temporal connection between this recent act of sexual harassment and her ensuing firing would not alone provide a logical basis to suggest that her firing was a retaliatory measure: “[C]ausation sufficient to establish a prima, facie case of unlawful retaliation may be inferred from the proximity in time between the protected activity and the allegedly retaliatory discharge.”²⁵ According to Mahan’s evidence, her most recent protected conduct allegedly occurred at Ba-dami, a full year before she was fired.

On this record, we conclude that the superior court properly granted summary judgment to Arctic on Mahan’s claim of pre-textual discharge because, in response to uncontroverted evidence of Arctic’s legitimate reasons to fire her, Mahan failed to offer anything more than “unsupported assumptions and speculation” to establish her theory of pretext.²⁶

Mahan’s failure to meet her burden under the pretext framework does not necessarily defeat her retaliatory discharge claim, since she could conceivably still prevail on a “mixed-motive” theory by showing that, even if Arctic’s legitimate reasons were not completely pretextual, its actions were nonetheless substantially motivated by a desire for retaliation. Yet under the facts presented here Mahan’s claim fares no better as a mixed-motive case than it does under a pretext theory. Under federal case law, mixed-motive cases require the plaintiff to “clear[ ] the initial hurdle of presenting direct evidence of discriminatory intent.”²⁷ In Kinzel v. Discovery Drilling, we declined to strictly apply the federal “direct evidence” requirement; yet we nonetheless held that a plaintiff in a mixed-motive case must at least offer either direct evidence of prohibited motivation or circumstantial evidence strong enough to be functionally equivalent to direct proof.²⁸

To meet this burden, the plaintiff in a mixed-motive case must present evidence of “conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting on the discriminatory attitude.”²⁹ If that evidence “is sufficient to permit the factfinder to infer that [the discrimination] was more likely than not a motivating factor in the employer’s decision,” then the plaintiff may recover “unless the employer [can] establish ] by a preponderance of the evidence that [it] would have taken the same action without consideration of the impermissible [discrimination.]”³⁰ In a mixed-motive case, then, the claimant must go beyond establishing the existence of a potential retaliatory motive by adducing strong evidence — evidence akin to direct proof — that tends to establish the improper motive’s substantial contributing role.

Here, as our discussion of Mahan’s pretext theory shows, Mahan offered neither direct nor strong circumstantial evidence suggesting that Arctic actually fired her for retaliatory reasons. At most, she presented a theory of retaliation based on subjective belief and an attenuated circumstantial chain of events. She insisted that she was fired from her job at Alpine camp in March 2000 for engaging in protected conduct that occurred the year before at Badami camp, yet she identified no specific “conduct or statements by persons involved in the decisionmaking process”³¹ to support her contention. As already noted, she offered only her own subjective belief: When asked whether Arctic fired her because of her refusal to have sex with Harris and Gobaleza at the Badami camp in 1999, Mahan responded, “I believe it had a lot to do with it; maybe I’m wrong, but I believe it did.”

We see no arguable basis on this record for concluding that Mahan’s beliefs concerning Arctic’s retaliatory animus amounted to “sufficiently strong” circumstantial evidence to raise a genuine dispute of material fact under Kinzel’s standard for a mixed-motive claim.

IY. CONCLUSION

We thus AFFIRM the superior court’s order granting summary judgment to Arctic.

FABE, J., with whom CARPENETI, J., joins, dissents.

1 . Mahan's complaint also included claims for defamation and intentional infliction of emotional distress. Mahan later withdrew her defamation claim. Because Mahan's IIED claim relies on her claim for sexual harassment, we need not discuss it separately here.

2 . In re Estate of Evans, 901 P.2d 1138, 1140 (Alaska 1995).

3 . Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314, 1317 n. 7 (Alaska 1994).

4 . R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994).

5 . French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996) (internal citations omitted) (citing Broderick v. King’s Way Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991)).

6 . AS 18.80.220(a)(1) provides that it is unlawful for:

an employer to refuse employment to a person, or to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of the person's race, religion, color, or national origin, or because of the person's age, physical or mental disability, sex, marital status, changes in marital status, pregnancy, or parenthood when the reasonable demands of the position do not require distinction on the basis of age, physical or mental disability, sex, marital status, changes in marital status, pregnancy, or parenthood.

7 . See French, 911 P.2d at 28.

8 . The relevant portion of AS 09.10.070 provides in part:

(a) Except as otherwise provided by law, a person may not bring an action ...

(5) upon a liability created by statute, other than a penalty or forfeiture; unless the action is commenced within two years of the accrual of the cause of action.

(Emphasis added.)

9 . Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1249 (Alaska 2001).

10 . Sengupta, 21 P.3d at 1249.

11 . Id.

12 . Reich v. Cominco Alaska, Inc., 56 P.3d 18, 26 (Alaska 2002).

13 . Because we conclude in Part III.C below that Mahan presented insufficient evidence to support her retaliatory discharge claim, we need not address the dissent's suggestion that Mahan’s wrongful termination might have revived her time-barred sexual harassment claim. See Dissent at 666-667. We note only that Mahan has not raised or meaningfully argued this point on appeal.

14 . Specifically, AS 18.80.220(a)(4) makes it unlawful for an employer "to discharge, expel, or otherwise discriminate against a person because the person has opposed any practices forbidden under AS 18.80.200-18.80.280 [the Alaska Human Rights Act].”

15 . Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43 (Alaska 2000).

16 . See VECO, Inc. v. Rosebrock, 970 P.2d 906, 918 (Alaska 1999) (stating that the three-part framework used in Title VII cases has been adopted for discrimination claims as well as retaliatory discharge claims).

17 . Id. at 919.

18 . Id.; see also Lincoln v. Interior Reg’l Hous. Auth., 30 P.3d 582, 586 (Alaska 2001).

19 . Kinzel v. Discovery Drilling, 93 P.3d 427, 433 (Alaska 2004) (quoting VECO, Inc., 970 P.2d at 919).

20 . Lincoln, 30 P.3d at 586-87.

21 . McGlothlin v. Municipality of Anchorage, 991 P.2d 1273, 1277 (Alaska 1999).

22 . French, 911 P.2d at 25.

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²⁴

25 . Kinzel, 93 P.3d at 433 (emphasis added).

²⁶

27 . Era Aviation, 17 P.3d at 44.

28 . Kinzel, 93 P.3d at 434.

29 .Id. at 435 (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182-83 (2d Cir.1992) (citation omitted)).

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