      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

LUIS R. RODRIGUEZ,          )
                            )                           Supreme Court No. S-15383
              Appellant,    )
                            )                           Superior Court No. 3AN-11-11621 CI
    v.                      )
                            )                           OPINION
ALASKA STATE COMMISSION FOR )

HUMAN RIGHTS,               )                           No. 7033 – August 14, 2015

                            )
              Appellee.     )
                            )

              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, Gregory Miller, Judge.

              Appearances: Luis R. Rodriguez, pro se, Anchorage,
              Appellant. William E. Milks, Assistant Attorney General,
              and Michael C. Geraghty, Attorney General, Juneau, for
              Appellee.

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

              WINFREE, Justice.

I.    INTRODUCTION
              An airline employee filed a complaint with the Alaska State Commission
for Human Rights, alleging employment discrimination based on his race.                              The
Commission initiated an investigation as required by statute. After the investigation the
Commission concluded that the employee’s racial discrimination allegations were not
supported by substantial evidence, and the Commission dismissed the complaint without
holding a hearing. The employee appealed to the superior court, and the superior court
affirmed the Commission’s conclusion that the employee’s complaint was not supported
by substantial evidence. The employee appealed to us. Because we agree that the
employee failed to present the Commission substantial evidence of race-based
discrimination, we affirm the superior court’s decision affirming the Commission’s
dismissal of the employee’s discrimination complaint.
II.    FACTS AND PROCEEDINGS
               Luis Rodriguez is a gay Hispanic man employed by Delta Airlines, Inc. In
November 2010 Rodriguez filed a complaint with the Alaska State Commission for
Human Rights, accusing Delta of race-based discrimination. Rodriguez alleged that
Delta (1) “did not delete the position of a Caucasian coworker with less seniority,” and
(2) “recently brought another Caucasian employee with less seniority . . . back from lay­
off status.”
       A.      Commission-Developed Facts And Decision
               The Commission notified Rodriguez and Delta that it had initiated an
investigation to determine whether Rodriguez’s discrimination complaint was supported
by substantial evidence. A Commission investigator interviewed Rodriguez, his union
representative, and Delta staff. The investigator also reviewed Delta’s position statement
and Delta’s responses to information requests.
               The Commission determined that Rodriguez previously had worked for
Northwest Airlines and became a Delta employee when the two airlines merged.
Rodriguez had been employed as an equipment service employee (ESE) in cargo
operations in Anchorage. In December 2009 Delta had informed Rodriguez and other
ESEs that they would be furloughed from their positions as full-time cargo-operations
ESEs. Delta explained to the Commission that this furlough “caused [Rodriguez and the

                                           -2-                                      7033

other cargo-operations ESEs] to transfer to similar ESE positions working with
scheduled passenger flights on the aircraft operations ramp.” Furloughed employees
were offered part-time temporary positions in Anchorage. But under the terms of his
union’s collective bargaining agreement, when furloughed Rodriguez also was entitled
to exercise his seniority and displace a junior ESE at another location. In May 2010
Rodriguez exercised his seniority and requested a transfer to Seattle.
              Rodriguez told the Commission that he did not have the opportunity to bid
for a part-time position in Anchorage, and that a Caucasian employee with less seniority
was allowed to remain in a position in Anchorage. Rodriguez also asserted that while
working on the ramp in Anchorage, after the furlough from cargo operations, he “was
constantly harassed (called ‘faggot’ and other names) by his supervisor Nash and several
coworkers.”    In April 2010 Delta received complaints about Nash’s behavior,
subsequently conducted an investigation, and in July terminated Nash’s employment.
During the investigation Rodriguez informed Delta that Nash gave Rodriguez no
overtime, harassed him, made comments about his sexuality, and retaliated against him
for reporting to management.
              Approximately two weeks after accepting the Seattle position, and before
working a single shift, Rodriguez requested a transfer back to Anchorage. Delta granted
Rodriguez’s request and in July, shortly after Nash had been terminated, Delta offered
Rodriguez a temporary ESE position in Anchorage. After returning to Anchorage
Rodriguez worked one day but then called in sick for his next five shifts. Delta informed
the Commission that Rodriguez had then “abruptly requested to end his temporary
assignment and return to furlough status.”
              Rodriguez attempted to justify to the Commission his poor work attendance
and furlough request, explaining that his union representative recommended layoff status
because Rodriguez was depressed, stressed, and afraid after receiving harassing

                                           -3-                                     7033

telephone calls from Nash. Rodriguez asserted that he reported the calls but Delta human
resources would not allow him to take stress-based injury leave and would not allow him
to return to furlough status without providing documentation establishing medical
reasons. Rodriguez also claimed that a Delta manager told him to go on layoff status.
              Delta explained that it subsequently determined that it “needed another
temporary ESE” in Anchorage. Delta did not offer Rodriguez the assignment because
there were limited opportunities and Rodriguez “gave . . . airport leaders a poor
impression of his dependability and willingness to resume working.”1 Delta instead
offered the position to a “less senior active Caucasian ESE.” Rodriguez asserted that the
Caucasian ESE and additional less senior employees were called back for full-time
positions, violating the collective bargaining agreement. Delta contested Rodriguez’s
assertion, explaining that after July 2010 it had not hired or re-hired any ESEs and had
instead relied on existing ESEs working temporary assignments.
              Delta explained to the Commission that “the fact that . . . Rodriguez was not
selected [for the temporary ESE position] bears no relation to . . . Rodriguez’s ability to
be recalled for permanent work. Indeed, if and when permanent positions open up at his
work location, . . . Rodriguez will be recalled to duty based entirely on his seniority.”
Delta explained that “[i]f a temporary ESE position is intended to last no longer than
three months, Delta can by-pass seniority and select an ESE at its discretion to fill the
short-term assignment” because the collective bargaining agreement did not require that
Delta make temporary position offers based on employee seniority. And Delta argued
that Rodriguez’s assertion that he was not selected for the temporary assignment because
of his race “is based solely on speculation and is easily contradicted by the poor


       1
            There is evidence in the record that Rodriguez’s poor attendance predated
the Northwest-Delta merger and that Rodriguez was admonished by Northwest for poor
work attendance.

                                           -4-                                       7033

attendance and reliability he demonstrated when he was previously selected for the
temporary position. Indeed, he was passed over for legitimate, non-discriminatory
reasons.”
             Delta provided evidence that it filled temporary positions after July 1, 2010
with a diverse group of ESEs, selecting five Asian-Americans, three Caucasians, and one
African-American. Delta explained that Rodriguez was not offered the subsequent
temporary ESE position because of Rodriguez’s failure to work in Seattle as well as his
poor attendance when he returned to Anchorage — Delta denied any of its decisions
were motivated by race. Delta also explained that the less senior Caucasian ESE
“maintained perfect attendance; unlike . . . Rodriguez he did not even miss one scheduled
work day.” Delta provided evidence of hours worked to support its assertion. And in
May 2011 Rodriguez was offered and accepted another temporary ESE position.
             The Commission concluded that Rodriguez’s December 2009 furlough was
not timely challenged. The Commission therefore did not determine whether there was
substantial evidence that Rodriguez had been furloughed because of his race.2 The
Commission next addressed Rodriguez’s assertion that Delta discriminated against him
because of his race by hiring a junior Caucasian employee instead of Rodriguez when
filling the temporary position in September 2010. The Commission explained that
“[e]vidence showed that [Delta], in making its selection, compared [Rodriguez’s] poor
attendance during his last two assignments with the other ESE’s good attendance
record,” that Rodriguez “accepted another temporary ESE position with [Delta] in May
2011,” and that the “[i]nvestigation did not show that [Delta] discriminated against


      2
              During the investigation the Commission informed Rodriguez: “Your first
allegation — that your position was deleted and the position of a Caucasian worker was
not deleted is not timely for this complaint. This occurred more than 180 days before
your complaint was filed.”

                                           -5-                                      7033

[Rodriguez] based on his race.” The Commission found Rodriguez’s discrimination
allegation was not supported by substantial evidence and dismissed his complaint
without a hearing.3
       B.     Superior Court Proceedings
               Rodriguez appealed pro se to the superior court, asserting that the
Commission’s decision was unfair and requesting a more careful review of his case.
Rodriguez detailed complaints about the stressful work atmosphere before he transferred
to Seattle and about Nash’s harassment. Rodriguez also argued that the Commission
“didn’t do [a] full investigation.”
              The Commission explained to the superior court that “the investigation did
not disclose substantial evidence of race discrimination” and that “the investigation did
not disclose evidence revealing a reasonable possibility that race discrimination
motivated Delta’s decision to recall another employee of a different race than Rodriguez
in September 2010.” The Commission also asserted that “regarding Rodriguez’s initial
layoff on December 30, 2009, the complaint of discrimination filed with the Commission
on November 15, 2010 was untimely as it was filed more than 180 days after the layoff
date.” Finally, the Commission noted that Rodriguez focused on his sexual orientation
and Nash’s offensive behavior — allegations that did not support the race-based
discrimination assertion.
              At oral argument before the superior court Rodriguez discussed Nash’s
harassment, and asserted that issues started when Rodriguez was moved to the ramp area.
Rodriguez asserted that the harassment continued when he returned from Seattle and


       3
             If the Commission’s investigation reveals substantial evidence of
discrimination the Commission may refer the complaint for a hearing. AS 18.80.120(a).
If the Commission’s investigation fails to reveal substantial evidence of discrimination
the Commission shall dismiss the complaint. AS 18.80.112(a).

                                           -6-                                     7033

noted that his mental stress had led him to see a psychiatrist and to call a Delta hotline
asking for help. Rodriguez mentioned that Nash called to harass him when he went back
to work. And Rodriguez argued that the Commission failed to conduct a thorough
investigation.
             The superior court first attempted to determine whether Rodriguez’s claim
was timely filed. Rodriguez explained that he waited until November 2010 because the
union was investigating his complaint. Rodriguez then asserted that he was complaining
not only about his furlough, but also about not being hired back.
             The court then asked Rodriguez about racial discrimination. Rodriguez
responded by talking about seniority and his pay decrease; he mentioned that Delta kept
an employee with lower seniority while higher seniority employees had to leave. The
court pressed Rodriguez to talk about race. Rodriguez mentioned the investigation of
Nash before Rodriguez went to Seattle, but again said nothing about racial
discrimination.
             The Commission’s attorney asserted that its authority was limited to race
discrimination, and noted that it had investigated the complaint as alleging race-based
discrimination when Rodriguez was furloughed in December 2009 and as alleging race-
based discrimination for failure to recall him in late summer 2010. He explained that
Rodriguez’s complaint was not timely as to the initial layoff.
             The Commission’s attorney then discussed Delta’s decision not to recall
Rodriguez and instead recall a less senior Caucasian employee. He noted that Rodriguez
was furloughed with a number of other employees, that Rodriguez decided not to
continue his employment in Seattle, and that Delta permitted him to return and receive
temporary employment in Anchorage. He explained that Rodriguez was rehired in 2011,
and that no evidence of racial animus had been presented. He noted that the facts
supported Delta’s explanation for selecting an employee with perfect attendance. He

                                           -7-                                      7033

noted Nash’s bad behavior, but explained that the Commission found no animus from
Nash or Delta based on Rodriguez’s race.
             The court again asked Rodriguez whether he was complaining of racial
discrimination. Rodriguez responded that his complaint was a little bit of everything.
The court asked Rodriguez if he still thought there had been racial discrimination, and
what the evidence was.       Rodriguez responded that he thought there had been
discrimination, but he was unable to point to any specific evidence of raced-based
discrimination.
             Instead Rodriguez complained that the Commission’s investigation was
insufficient. Rodriguez talked about his visits with a psychiatrist and how humiliated he
felt. The court again asked Rodriguez for evidence of racial discrimination, and
Rodriguez again asserted that the Commission’s investigation was insufficient. The
court asked what racial discrimination information would have come from additional
investigation, but Rodriguez was unable to explain how racial discrimination led to any
of Delta’s decisions.
             The superior court noted that “if an investigation by the Commission does
not reveal substantial evidence of discrimination based on race . . . then the Commission
must dismiss the complaint for lack of jurisdiction” (emphasis in original) and that “the
Commission has no power to address decisions based on workplace seniority.” The
court explained that Rodriguez’s arguments focused on seniority rather than race and that
he pointed to no evidence of race-based discrimination.         The court affirmed the
Commission’s decision because the “255 page record established that the Commission
adequately investigated . . . Rodriguez’s claim” and because “there is no evidence that
Delta discriminated against [Rodriguez] because of his race.”
III.   STANDARD OF REVIEW
             “In an appeal originating with an administrative agency, we do not look to

                                           -8-                                     7033

the superior court’s decision when that court acts as an intermediate court of appeal,
instead directly reviewing the agency’s decision.”4 Although the Commission argues
that we should apply the substantial evidence standard of review to its decision, a very
deferential standard,5 we previously have explained that “[a] determination that a party
failed to produce substantial evidence of discrimination is a question of law to which we
apply our independent judgment.”6
IV.    DISCUSSION
       A.     Legal Background
              Under AS 18.80.220(a) it is illegal 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.
The statute does not include discrimination based on a complainant’s sexual orientation.
              A person alleging employment discrimination may file a complaint with the


       4
            Grundberg v. Alaska State Comm’n for Human Rights, 276 P.3d 443, 449
(Alaska 2012) (footnote omitted).
       5
              See, e.g., Alaska State Comm’n for Human Rights v. Yellow Cab, 611 P.2d
487, 490 (Alaska 1980) (“The standard of review to be applied by the reviewing court
is whether the agency’s findings of fact are supported by substantial evidence. . . . [T]he
evidence should be viewed in favor of the findings even though the reviewing court
might have taken a contrary view of the facts.” (footnotes omitted)).
      6
            Grundberg, 276 P.3d at 449 (citing Button v. Haines Borough, 208 P.3d
194, 200 (Alaska 2009); Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006)).

                                            -9-                                      7033

Commission.7 “A complaint alleging a discriminatory act or practice not of a continuing
nature must be filed no later than . . . 180 days after the alleged discriminatory act or
practice occurred . . . .”8 “The [Commission] . . . shall informally investigate the matters
set out in a filed complaint, promptly and impartially.”9 “If an investigation of a
complaint . . . fails to discover substantial evidence of an unlawful discriminatory
practice . . . the [Commission] shall issue an order dismissing the complaint without
prejudice”10 and without a hearing.11
              We have adopted a three-step burden-shifting framework when evaluating
discrimination claims.12 “In the first stage of the burden-shifting analysis, the employee
claiming discrimination must introduce evidence that raises an inference that an
unfavorable employment decision resulted from the employer’s discriminatory intent.”13
We have explained that “[t]he first step of the analysis places the burden on the




       7
              See AS 18.80.100(a) (“A person who is aggrieved by a discriminatory
practice prohibited by this chapter may sign and file with the commission a written,
verified complaint stating the name and address of the person alleged to have engaged
in the discriminatory practice, and the particulars of the discrimination.”).
       8
              6 Alaska Administrative Code (AAC) 30.230(b)(2) (2014).
       9
              AS 18.80.110.
       10
              AS 18.80.112(a).
       11
           See AS 18.80.110, .120 (together providing for an evidentiary hearing if the
Commission’s investigation reveals substantial evidence of discrimination).
       12
            Grundberg v. Alaska State Comm’n for Human Rights, 276 P.3d 443, 449
(Alaska 2012) (citing State, Dep’t of Fish & Game, Sport Fish Div. v. Meyer, 906 P.2d
1365, 1374 (Alaska 1995)).
       13
              Id. at 450.

                                           -10-                                       7033

complaining party to establish a prima facie case of discrimination.”14 To establish a
prima facie case of discrimination:
              The complainant must show that (1) the complainant belongs
              to a protected class; (2) the complainant applied for and was
              qualified for the job for which the employer was seeking
              applications; (3) the complainant was rejected despite the
              complainant’s qualifications; and (4) after the complainant’s
              rejection, the position remained open and the employer
              continued seeking applications from persons with the
              complainant’s qualifications.[15]
“The burden then shifts, in the second stage, to the employer to articulate and provide
evidence of a legitimate, non-discriminatory reason for its action.”16 “In the third stage
of the analysis, the burden shifts back to the employee to rebut the employer’s alleged
non-discriminatory reason.”17
              “The burden-shifting framework governs the Commission’s investigation
of discrimination complaints and its determinations of substantial evidence.”18 But we
have also explained that “[t]he burden required to compel a hearing is less than the
burden required to prevail on the merits at the hearing’s conclusion.”19 Thus, “a


         14
              Raad v. Alaska State Comm’n for Human Rights, 86 P.3d 899, 904 (Alaska
2004).
         15
              Id.
         16
              Grundberg, 276 P.3d at 450.
         17
              Id.
         18
              Id.
         19
            State, Dep’t of F ish & Game, Sport Fish Div. v. Meyer, 906 P.2d 1365,
1376 (Alaska 1995), superseded by statute, ch. 63, § 4, SLA 2006. Despite being
superseded by statute the Meyer analysis is still applicable. We have explained:
                                                                         (continued...)

                                          -11-                                      7033

[Commission] finding of no substantial evidence cannot be based on the fact that a
complainant ‘failed’ to meet the three-part . . . test at the investigative stage.”20 Instead,
at the investigative stage “the Commission must determine whether there is a reasonable
possibility that discriminatory reasons motivated the employer’s decision.”21
              When reviewing a Commission decision dismissing a discrimination
complaint without conducting a hearing, we ask whether the “evidence discussed by the
Commission . . . demonstrate[d] that [the] claims were completely lacking in merit, or




       19	
              (...continued)
              When Meyer was decided complaints could be dismissed
              after an investigation but before a hearing for lack of
              substantial evidence, but not for prudential or policy reasons.
              After Meyer was decided, the legislature enacted
              AS 18.80.112(b) to give the [Commission] discretion to
              dismiss a complaint for a number of reasons in addition to the
              lack of substantial evidence. Ch. 63, § 4, 2006 SLA. These
              reasons include that the complainant has indicated an intent
              to bring an action based on the same facts in another forum,
              that the hearing will not represent the best use of Commission
              resources or advance the purposes of eliminating or
              preventing discrimination, or that the probability of success
              of the complaint on the merits is low. AS 18.80.112(b). In
              this case the [Commission] did not dismiss the complaint
              based on any of these reasons; the dismissal was based on the
              lack of substantial evidence. Such dismissals remain
              reviewable in accordance with Meyer.
Toliver v. Alaska State Comm’n for Human Rights, 279 P.3d 619, 623 n.3 (Alaska 2012)
(citation omitted). Because the Commission dismissed Rodriguez’s claim for lack of
substantial evidence we review the dismissal in accordance with Meyer.
       20
              Meyer, 906 P.2d at 1376.
       21
              Grundberg, 276 P.3d at 450.

                                            -12-	                                       7033

that a fact finder would be compelled to find for [the employer].”22 We will reverse the
Commission’s decision if the complainant “raised a genuine dispute regarding [the
employer’s] employment decisions” because such factual disputes must be resolved
through a hearing.23 “We have made clear that the Commission should not ‘attempt to
determine at the investigative stage whether the non-discriminatory reasons proffered by
the employer are legitimate.’ Instead, the Commission must determine whether there is
a reasonable possibility that discriminatory reasons motivated the employer’s decision.”24
“An employee alleging discrimination must corroborate . . . allegations with objective
evidence, but . . . [does not need to] develop a conclusive or unassailable account of the
employer’s decision-making.”25
      B.	    The Commission Correctly Concluded That Rodriguez’s Complaint
             Regarding The Deletion Of His Position Was Untimely.
             Rodriguez asserted that Delta discriminated against him based on his race
when it “did not delete the position of a Caucasian coworker with less seniority . . .
[who] is still employed in Anchorage.”            The Commission explained that the
“[i]nvestigation showed that [Rodriguez’s] layoff is not timely for this complaint.”
Rodriguez, appealing pro se, does not explicitly challenge or address the Commission’s
timeliness conclusion, focusing instead on his negative interactions with Nash and
alleging the Commission failed to conduct a thorough investigation.
             “Although we require courts to provide some procedural guidance for a pro



      22	
             Meyer, 906 P.2d at 1376.
      23
             Id. at 1375-76 & n.14.
      24
             Grundberg, 276 P.3d at 450 (footnote omitted) (quoting Meyer, 906 P.2d
at 1376).
      25
             Id. at 451 (footnote omitted).

                                          -13-	                                     7033

se litigant when it is clear what ‘action he or she is obviously trying to accomplish,’ the
failure to raise an argument in an opening brief leaves the other party with no notice or
opportunity to respond . . . .”26 Because Rodriguez has not addressed timeliness, he has
waived any challenge to the Commission’s untimeliness conclusion.                Even had
Rodriguez not waived this argument, the Commission correctly concluded that he failed
to timely challenge the initial furlough decision. The record establishes that Rodriguez
was furloughed in December 2009. Rodriguez’s complaint, filed in November 2010,
was not timely filed within the allowable 180-day time period.27
       C.	    The Commission Correctly Concluded There Was Not Substantial
              Evidence Of Race-Based Discrimination.
              Rodriguez established a prima facie case of discrimination. There was
evidence that Delta hired a less-senior Caucasian employee over Rodriguez for the
temporary ESE position.        And at oral argument before the superior court the
Commission’s attorney explained that the Commission did not argue Rodriguez had
failed to establish a prima facie case of discrimination. He instead asserted that there was
not substantial evidence supporting an inference that Delta was motivated by
discriminatory reasons.
              Delta provided non-discriminatory reasons for its decision to hire the less-
senior Caucasian employee for the temporary assignment — Delta asserted that it did not
have faith Rodriguez would fulfill his obligations because he never reported to work in
Seattle, called in sick after one day of work upon returning to Anchorage, and then
requested to return to furlough status. Delta also provided evidence that it selected a
diverse group of temporary ESEs — five Asian-Americans, three Caucasians, and one

       26
             Hymes v. DeRamus, 222 P.3d 874, 887-88 (Alaska 2010) (quoting Breck
v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)).
       27
              See 6 AAC 30.230(b)(2).

                                           -14-	                                      7033

African-American — after Rodriguez had requested to return to furlough status.
             Rodriguez failed to rebut Delta’s evidence and explanations for its
employment decisions; i.e., Rodriguez failed to point to any objective evidence
corroborating his allegation and thus failed to establish a reasonable possibility that
discriminatory reasons motivated Delta’s decisions. Rodriguez’s arguments throughout
this case focused on seniority, his sexual orientation, and Nash’s extremely inappropriate
behavior, but Rodriguez’s complaint to the Commission alleged racial discrimination.
The superior court repeatedly encouraged Rodriguez to point to any evidence of race-
based discrimination, but he was unable to do so. And in his brief to us Rodriguez
implies that he was furloughed and not rehired in retaliation for providing information
about Nash, but this does not establish a reasonable possibility of race-based
discrimination. And although Rodriguez admonishes the Commission for failing to
conduct further investigation into his mental health and his reaction to Nash’s behavior,
Rodriguez has not explained what evidence of racial discrimination the Commission
would have discovered upon further investigation. Nor has Rodriguez disputed Delta’s
evidence providing legitimate, non-race-based reasons for its employment decisions.
             Because Rodriguez failed to “corroborate [his] allegations with objective
evidence,”28 we conclude the Commission correctly decided there was not substantial
evidence that Delta discriminated against Rodriguez based on his race.
V.    CONCLUSION
             We AFFIRM the superior court’s decision to affirm the Commission’s
dismissal of Rodriguez’s discrimination complaint.




      28
             Grundberg, 276 P.3d at 451.

                                          -15-                                      7033
