Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

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, 

Appellant, 

v. 

ALASKA STATE COMMISSION FOR

HUMAN RIGHTS, 

Appellee. 

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) Supreme Court No. S-15383 

Superior Court No. 3AN-11-11621 CI 

O P I N I O N 

No. 7033 – August 14, 2015
 

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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 layoff 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 

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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 

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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. 

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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.” 

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[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). 

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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 racebased 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 

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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 

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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)). 

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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. 

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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 Fish & 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...) 

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[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. 

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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). 

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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 lesssenior 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). 

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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 racebased 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. 

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