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Employment discrimination suit heard in Superior Court

Posted: March 19, 2012 - 12:06am

A former employee of the State of Alaska Division of Finance, who claims she was discriminated against, is appealing her case in Juneau Superior Court after her complaint was dismissed.

The 60-something Filipino woman, who declined to be named and who has worked for the division in Juneau for about 25 years, filed a complaint of discrimination against the division, saying it reclassified her position downward in attempt to get her to leave and also passed her over for another job in favor of a younger and less qualified person.

Oral arguments in the case were heard Friday before Judge Philip Pallenberg in Juneau Superior Court, which has the jurisdiction to hear appeals from Alaska Administrative Agencies.

The woman’s attorney Michael P. Nash. told the judge that his client was hired as an accounting clerk in 1984 and worked her way up to an accounting technician. She was tasked with work above her pay grade, such as conducting audits, and, at the urging of her coworkers and a former supervisor, she requested to have her position reclassified to a higher position in 2008.

Nash said that when the state looked into the classification, which determines pay level, the state reclassified her position downward, and the woman was demoted and her salary frozen. She retired early two months later and left in November 2009 to work for the Department of Public Safety.

But just three months after she left, her attorney argues, the state reclassified her position upward and it was filled by professional accountants.

“After she left that position, the duties that she had performed were assigned to professional accountants, indicating that this was more than a clerk’s position,” he said.

“(She) believes she was demoted because of her race, national origin and/or age,” Nash added in a written brief. “(She) may also have been demoted in retaliation for having requested that her position be reclassified to a higher position.”

Nash told the judge his client applied for another job with the division in May of 2009 before making a lateral transfer to the Department of Public Service, but that she was passed over.

“Regarding the decision not to rehire her, she was passed over in favor of much less experienced, much younger applicant, someone without a college degree, someone whose previous experience had been as a store clerk and a waitress, but who has worked in the division for a number of months, but not years,” Nash said, “whereas (my client) has a bachelor’s degree, she has 25 years working in the same division and lots of experience.”

The woman filed a complaint of discrimination against the division in October 2009, and it was investigated by the Alaska Human Rights Commission. The Commission dismissed her complaint in September of 2010 after finding that there was no substantial evidence of discrimination.

Arguing on behalf of the Commission, Assistant Attorney General William E. Milks said that her position was downgraded because the human resources specialist who made the recommendation found that her job duties were more clerical than technical, and required no special training.

“(The specialist) believed that (her) section supervisors wanted to leave the position alone and not have a desk audit, but (she) insisted and the position ended up being downgraded. (The specialist) said that the final decision to downgrade the position was delayed in order to give (her) time to make a lateral transfer,” Milks wrote in a brief.

When asked if the downgrade was a method to force her out of her job due to age and race discrimination, the specialist replied, “No. The Division she worked for is finance. I happen to know a lady who works there is in her 70s. Many accounting positions are filled with Filipinos. I just don’t see it. I think she was mad, unhappy, and did not know what else to do,” according to a written brief filed by Milks.

The Commission’s investigator also found that, “the down-class had to do with the duties complainant was assigned and performing at the time. This did not reflect on her abilities.”

As for the application for another accounting technician job in May 2009, Milks said that the woman was one of nine considered for the job opening, but that she ranked the last of the nine by the hiring panel. Milks said the person who was hired was a current state employee working as an accounting clerk who had accounting-related work experience both with the state and with a bank. The state noted that the person who received the job was of Asian descent.

Milks continued to say that just because the woman is a member of several protected classes, was qualified for her prior job and the job she applied for and because she did not receive a job offer while someone else who is not a member of the same protected classes did, is not sufficient evidence of unlawful discrimination.

“If the standard is so low, than basically a broad, wide conspiracy is sufficient to trigger a hearing with no direct evidence of any discriminatory animus,” he said, adding that it would turn to Human Rights Commission into a “complaint-taking bureau” instead of a real investigative body.

Nash, in a rebuttal, argued that there are indeed issues of material fact at hand, and that it should not be up to the Commission to resolve those during the investigative stage.

“I think the court has suggested that that’s not appropriate,” he said.

He argued that because his client is a member of a protected class and because her position was downgraded, that’s enough for his client to meet her burden to prove substantial evidence of discriminatory practices. Because she has met that standard, the Commission is required to hold a hearing in the matter, he said.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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