author: WINFREE, Justice.

text:
    Harry ROSS, Appellant, v. ALASKA STATE COMMISSION FOR HUMAN RIGHTS, Appellee.
    Supreme Court No. S-16961
    Supreme Court of Alaska.
    August 30, 2019
    Mark Choate, Choate Law Firm LLC, Juneau, for Appellant.
    William E. Milks, Assistant Attorney General, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   WINFREE, Justice.

I. INTRODUCTION

After 36 years of service with the Alaska Railroad Corporation - most of those years as a conductor - an African-American man applied for a newly created managerial trainmaster position, but he was not chosen. He brought an unsuccessful internal racial discrimination complaint. He brought a similar complaint before the Alaska State Commission for Human Rights, and it was denied. He then appealed to the superior court, and it ultimately affirmed the Commission's determination that he had failed to carry his burden of showing racial discrimination.

On appeal to us, the man contends that the Railroad's stated reasons for not hiring him were pretextual. Although there is some basis for his arguments that a hiring panel member may have harbored racial prejudice and that the explanation that he was not chosen because of poor interview performance was a post-hoc rationalization, we review the Commission's determination only for substantial supporting evidence. Under this deferential standard of review, we conclude that the evidence detracting from the Commission's determination is not dramatically disproportionate to the supporting evidence. Because substantial evidence in the record thus supported the Commission's determination, we affirm the superior court's decision upholding it.

II. FACTS AND PROCEEDINGS

A. Facts

Harry Ross is an African-American who was hired as a brakeman by the then-federally-owned Railroad in 1968, promoted to conductor around 1974, and promoted to yardmaster in 1982. He testified that when he was a brakeman and conductor, African-American colleagues commonly were referred to by a racial slur and the slur was used in his presence to deride an African-American colleague's performance. Ross asserted that when he was a yardmaster efforts were made to reduce his higher evening-shift pay to increase a white colleague's pay, and an employee - apparently white - he had trained to become a yardmaster later was chosen over him for a higher position.

After three years as a yardmaster, Ross returned to being a conductor in 1985. He testified that he chose to return to the conductor position because of the discrimination he had endured as a yardmaster. Personnel records indicate that when the federal government transferred the Railroad to the State of Alaska in 1985, his employment terminated; he then was rehired by the State-owned Railroad as a conductor.

Ross still was a conductor in 2004 when he learned the Railroad was hiring for nine new managerial trainmaster positions to be located in Anchorage, Fairbanks, and Talkeetna. The position description listed minimum qualifications of "15 years of train service experience and one year supervising, directing, or being a team leader for train operations personnel." The trainmaster positions were non-union, and length of experience was not determinative. Ross was among 18 candidates selected to interview for the 9 new positions; he sought one of the proposed Anchorage positions. Two candidates were African-American; the rest were white.

A panel of five white Railroad employees interviewed candidates and recommended whom to hire; the recommendations were accepted in their entirety. The hiring panel was supposed to conduct interviews using a questionnaire with 25 graded questions, 3 ungraded questions, and 1 graded item titled "Interview Presentation." Ross responded to a question about his reasons for applying by citing his experience, his desire to increase his pension based on a better "high three" salary years, his enjoyment of working with people, and his wish to better support his new wife. He responded to a question about computer proficiency by stating that his skills were "basic."

The panelists eventually abandoned the grading system because the candidates were not consistently asked the same questions and because panelists did not receive instruction on its proper use. Panelists testified that they instead discussed the candidate's strengths and weaknesses after each interview, and that, in a group discussion after concluding all the interviews, they decided which candidates to recommend. Four panelists made notes about some candidates' interview performance and qualifications; it appears that only one made notes, which were negative, about Ross's performance.

The Railroad made offers to only 7 of 18 applicants, despite recruiting for 9 positions. Two positions were left vacant in Anchorage; neither Ross nor the other African-American candidate was offered a position. Although no successful Anchorage candidate had as long a tenure as Ross, all had been with the Railroad for many years - one for 22 years, two for 29 years, and one for 30 years. The Railroad continued recruiting to fill the vacancies, reducing the minimum required years of experience from 15, when Ross applied, to 5 in 2005.

Ross filed an internal complaint with the Railroad in November 2004, alleging that he was not chosen for a trainmaster position because of his race. The complaint was investigated by Ouida Morrison, the Railroad's African-American equal employment opportunity manager; she reviewed notes panelists made during the interviews and conducted individual interviews with Ross and the panelists.

Two of the panelists - Pat Flynn and Curt Rudd - allegedly had past racially fraught interactions with Ross. Morrison testified to hearing from a colleague that Ross once had remarked that white people look alike and that this remark upset Flynn. Morrison memorialized this account in an email to the Railroad's counsel, concluding that Flynn had "formed an opinion about [Ross] and never let it go." But it does not appear that Flynn was asked about the alleged incident during the subsequent discrimination investigations, and neither Flynn nor the colleague was questioned about it during the Commission's administrative hearing.

Rudd admitted in testimony that he had referred to Ross by the nickname "Black Magic" for the 30 years they had known each other. Rudd testified that the nickname reflected Ross's apparently supernatural ability to turn trains around on schedule and that Ross had adopted the nickname for himself. Rudd further testified that the nickname was never meant to offend Ross and that Rudd ceased using the nickname when Ross objected to it in 2008. Ross denied ever referring to himself as "Black Magic," which he considered "kind of racist"; he said he felt the nickname was part of an ingrained hostile workplace culture that he had to let pass.

Flynn and Rudd may have played a disproportionate role in deciding whether to hire Ross as trainmaster. Rudd was the Anchorage terminal superintendent and would have been Ross's direct supervisor; Flynn testified that both he and Rudd would supervise trainmasters located in Anchorage. Morrison and the Railroad's Vice President of Operations, who ultimately was responsible for the hiring decisions, testified that Flynn had been designated the lead panelist.

Morrison testified that the panelists told her that when interviewing they focused on candidates' ability to communicate and interact, especially with younger colleagues. Morrison also testified that Ross told her he had been offended when Flynn entered Ross's interview late. Morrison concluded that Ross had performed poorly in the interview and that "he did not relay or sell himself that he was willing and wanting and desiring to do the job." But she never issued a formal determination whether the panel had discriminated against Ross.

In April 2005 Ross filed a complaint with the Commission, claiming that the Railroad discriminated against him in violation of AS 18.80.220(a)(1), prohibiting employment discrimination based on race. The Commission investigator interviewed Ross and the panelists. The investigator issued a two-page determination in March 2007, finding that the Railroad did not offer Ross a trainmaster position because he provided short answers and failed to elaborate during the interviews, did not "sell himself," conveyed that he felt "entitled" to the position, and lacked computer skills. The Commission therefore dismissed Ross's complaint without a hearing.

B. Proceedings

Ross appealed the Commission's dismissal to the superior court. The superior court issued its first decision in March 2008. The court relied on the U.S. Supreme Court's three-part McDonnell Douglas Corp. v. Green test. We have stated that, absent "direct evidence" of discriminatory intent, the three-part test should be used to analyze discrimination claims. Under the McDonnell Douglas framework, the complainant bears the initial burden of establishing a prima facie case of discrimination: membership in a protected class, application to a position for which the complainant was qualified, denial of the application, and hiring of a person not within the same protected class as the complainant. If the complainant establishes a prima facie case, the burden shifts to the employer to offer "legitimate, nondiscriminatory reasons for the employment action." An employer "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." If the employer offers a legitimate, credible reason for not hiring the complainant, the burden shifts back to the complainant to prove that the reason is pretextual. "[A] complainant may demonstrate pretext 'either directly by persuading the [tribunal] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.' "

The superior court distinguished between the amount of evidence needed to prevail under the test at an adjudication and the amount of evidence needed (at that time) to compel an administrative hearing based on an investigation by the Commission. A complainant needed only establish a prima facie case and offer facts raising a "genuine dispute about [the employer's] explanation of its decisions" to meet the evidentiary threshold to obtain an administrative hearing. The court determined Ross had established a prima facie case of discrimination and offered facts raising a genuine dispute about the Railroad's explanation by offering documents the Commission had not addressed because of its limited investigation. The court therefore ordered the Commission to hold a full evidentiary hearing.

A hearing was held before an administrative law judge (ALJ) in January 2009. Ross testified to past discrimination at the Railroad, including the common use of racial slurs earlier in his career and a specific instance when he heard a slur used to refer to an African-American colleague. He also testified to instances when he felt racist and discriminatory behavior had been directed at him. Ross testified that Rudd's "Black Magic" nickname referred to Ross's race and was offensive. Ross said that he had been training an apparently white subordinate who was promoted to a position that Ross also had applied for and that he believed the promotion was motivated by discrimination. Ross testified to being "annoyed" by Flynn's late arrival to the interview, but Ross insisted that it did not affect his performance. He testified that in his interview he stressed his experience as a yardmaster and his desire to train younger workers.

Each hiring panelist testified, offering accounts of the trainmaster candidates' interviews - Ross's in particular - consistent with the internal and Commission investigations' findings. Panelists testified that they were looking for candidates to "sell themselves" on why they deserved the position and to demonstrate an ability to communicate. Panelists testified that Ross gave short responses to questions and failed to elaborate on how his experience qualified him for the trainmaster position, leading some to discount the value of his experience despite knowing his tenure and service as a yardmaster.

Panelists testified that Ross appeared to lean too heavily on his experience, seemingly taking for granted that his experience would guarantee him a position. Flynn testified that this demonstrated a "seniority mentality." Flynn and two others testified that Ross appeared more interested in benefitting from the position - particularly a higher pension - than in benefitting the Railroad.

Three former Railroad employees testified to racism and discrimination at the Railroad. A white former employee testified to a general culture of racial discrimination during his time at the Railroad. An African-American former employee testified to: hearing racial slurs; witnessing, sometime in the 1990s, a white employee use a racial slur when telling Ross not to sit in the same train car; and experiencing discrimination similar to what Ross alleged. Specifically, the former employee testified that when he was a yardmaster in 1993, he interviewed to become a terminal manager - a position with the same duties as yardmaster - and an interviewer accused him of being interested only in earning his "high three." He testified that the interviewer later told him he should not get the raise that came with the promotion, and that another interviewer - possibly Rudd - made a comment to the effect that he was too lazy for the job. He filed a complaint with the Railroad, but it found no discrimination.

Another African-American former employee testified to hearing a colleague describe him to a third person using a racial slur in 2003 after the colleague thought their telephone conversation had ended. He testified that in 2003 or 2004 he had applied for a training program, that he had the most seniority of those who applied, that the employee who was selected had the least seniority, and that selection traditionally had been based on seniority. The former employee had filed complaints with the Railroad and then the Commission, but both complaints apparently were denied. He later quit.

Witnesses testified that only a handful of African-American employees held management positions at the Railroad around the time of the trainmaster interviews and that none of these positions were in the transportation division. Apparently the only two African-American employees in management in 2004 were Morrison and the administrative support staff supervisor.

The ALJ issued a recommendation to the Commission in July 2009. Applying the second and third prongs of the McDonnell Douglas test, the ALJ found that the Railroad had offered a legitimate business reason for its decision, shifting the burden back to Ross to "persuad[e] the [tribunal] that a discriminatory reason more likely motivated the employer or ... that the employer's proffered explanation is unworthy of credence." The ALJ ultimately was not persuaded by Ross's claim that the Railroad's explanation was pretextual.

In response to Ross's argument that use of racial epithets and lack of African-American managers demonstrated a workplace culture denying equal opportunity to African-American employees, the ALJ first concluded that the general use of racial slurs in the workplace was not probative of animus in the specific hiring process for trainmasters. The ALJ then concluded that Rudd's using the nickname "Black Magic" and his involvement in denying the other African-American employee's application for terminal manager may have been relevant, because Rudd participated in the trainmaster hiring process, but that Rudd did not mean "Black Magic" to be derogatory and the hiring decisions were made as a group. The ALJ also concluded that the lack of African-American managers was not probative because it did not indicate the Railroad's specific intent in hiring for the trainmaster position and was not placed in a broader statistical context.

In response to Ross's argument that the Railroad's explanation was a post-hoc rationalization facilitated by a flawed hiring process, the ALJ concluded that, although the hiring process was flawed, the explanations the panelists provided were related to the trainmaster position's responsibilities and likely not fabricated. In response to Ross's argument that his not being hired despite having superior qualifications demonstrated discrimination, the ALJ concluded that his tenure and job history were not determinative because the position was non-union and merit based and because of credible testimony that the new trainmaster position and his previous yardmaster position differed. The ALJ further concluded that Ross failed to inform the panel how his relevant experience qualified him to be a trainmaster. The ALJ recommended that the Commission dismiss Ross's complaint because he failed to prove discrimination.

The Commission adopted the ALJ's recommendation, and Ross appealed to the superior court. The court found that the ALJ had failed to adequately scrutinize the hiring panel's reliance on subjective hiring criteria, relying on Ninth Circuit Court of Appeals case law finding such criteria prone to conceal conscious and unconscious discrimination. The court therefore remanded the matter for the ALJ to consider, in light of pertinent Ninth Circuit case law, the panel's use of subjective criteria in the hiring process.

In April 2014 the ALJ issued a revised recommendation identical in most respects to the previous recommendation, but the ALJ also observed that several white employees who met the minimum qualifications had not been selected and that hearing testimony indicated other candidates had been evaluated based on interview performance. The Commission issued a final order adopting the revised recommendation with little explanation, although one commissioner dissented on the ground that the "interview process was highly subjective and a ready vehicle for unintentional discrimination." The superior court then affirmed the Commission's revised determination. This appeal followed.

III. STANDARD OF REVIEW

"When a superior court acts as an intermediate appellate court in an administrative matter, 'we independently review the merits of the agency's decision.' " We review a Commission decision for substantial supporting evidence. " '[S]ubstantial evidence[ ]' ... is 'such relevant evidence as a reasonable mind might accept as adequate to support' the agency's conclusion." "The substantial evidence test is highly deferential, but we still review the entire record to ensure that the evidence detracting from the agency's decision is not dramatically disproportionate to the evidence supporting it such that we cannot 'conscientiously' find the evidence to be 'substantial.' "

IV. DISCUSSION

A. Legal Standard And Scope Of Review

Ross argues that the Railroad's explanation for not selecting him was pretextual. As noted earlier, we apply the three-part McDonnell Douglas test to discrimination claims based on pretext if there is no direct evidence of discriminatory intent. Ross and the Railroad agree that the test's first two prongs - a prima facie showing that the employee was qualified but that no member of the employee's race was hired, and the employer's offer of a legitimate business reason for not hiring the employee - have been met. The sole question for us on review is whether substantial evidence supports the Commission's determination that Ross did not satisfy the third prong by showing the offered reasons for not hiring him were a pretext for discrimination. We have noted, when applying a similarly deferential standard of review, that the deferential standard of review may result in a decision we might not have reached were we the initial decision maker.

B. Substantial Evidence Supporting The Commission's Determination

1. Rudd's use of "Black Magic"

Ross argues that Rudd's use of the nickname "Black Magic" reflects racial animus that, when considered together with flaws in the hiring process and other evidence of discrimination by the Railroad, demonstrates Ross was not hired because of his race. Ross disputes Rudd's testimony that the nickname reflected Ross's magical ability with trains rather than racial prejudice, pointing to the term's negative association with "Satanism and devil-worship." Ross suggests that, even if not explicitly prejudicial, the term's racial reference and connotations should be considered circumstantial evidence of discriminatory intent.

The Railroad responds by invoking the ALJ's conclusion that Rudd credibly testified he had not intended "Black Magic" to be derogatory based on widespread use of nicknames in the railyard and his ceasing use of the nickname when Ross asked. The Railroad concedes that "Black Magic" may be considered circumstantial evidence of discriminatory intent along with other evidence, but it concludes that, even so, it would not make unreasonable the ALJ's finding that Ross was not denied the trainmaster position because of discrimination.

The ALJ found that "[b]ased on the testimony, the use of th[e] name, while racial, was not intended to be derogatory." But the ALJ also noted:

Although not intended as derogatory, reasonable people could view the nickname as derogatory. This is especially true in light of the testimony that racial epithets had been used at the [Railroad] in the not-so-distant past. Mr. Rudd's use of this term may reflect a conscious or unconscious bias, and the apparent acceptance of his use of this term by others may reflect a more general conscious or unconscious discriminatory attitude that could have spilled over into the interview process.

The ALJ concluded that the nickname "may be circumstantial evidence of a discriminatory attitude and will be considered in conjunction with the entire record." The ALJ did not discount that the nickname might be probative of discrimination, concluding only that it did not necessarily establish discrimination in the decision not to hire Ross and had to be considered in light of other evidence. This essentially is how Ross argues that it should be considered, although he seems to believe the ALJ should have found the intent behind using the nickname was necessarily prejudicial.

"The substantial evidence test is highly deferential, but we still review the entire record to ensure that the evidence detracting from the agency's decision is not dramatically disproportionate to the evidence supporting it such that we cannot 'conscientiously' find the evidence to be 'substantial.' " We do not review in isolation whether "Black Magic" was indicative of racial animus; we instead do what the parties request, namely review the record as a whole, keeping in mind that "Black Magic" may be probative of discriminatory intent.

2. Flynn's alleged racial prejudice

Ross also alleges that Flynn harbored racial prejudice against him and that it tainted the hiring process. Ross cites Morrison's email to the Railroad's counsel stating that Flynn had "formed an opinion about [Ross] and never let it go." Ross also cites Flynn's explanation during the investigation that one reason he did not want to hire Ross was because Flynn had learned that Ross could not complete the application by computer. Ross infers from this that Flynn likely believed, based on racial stereotypes, that Ross was unintelligent.

The ALJ did not address these allegations in its recommendation, although supporting evidence was presented at the administrative hearing. Presumably the ALJ did not find Ross's allegations persuasive, and we do not find that decision necessarily unreasonable. It does not appear that Flynn was asked about his alleged bias during either the investigation or the administrative hearing, and Morrison's third-hand account alone is not necessarily conclusive. And although there may be reason to infer that Flynn's stated concern about Ross's computer skills was disingenuous - one candidate was selected even though he told the panelists his computer skills were "not great" and he "may need some training," and he also had completed the application by hand - Ross offers nothing indicating that Flynn's true motives were discriminatory aside from Morrison's account and a conclusory statement that Flynn must have believed Ross could not complete the application using a computer because of his race.

3. Subjective criteria

Ross argues that the hiring panel's explanation that it based its hiring recommendations on enthusiasm should be closely scrutinized because using subjective hiring criteria such as enthusiasm often masks discriminatory intent. Ross asserts that this explanation cannot withstand close scrutiny in light of evidence of racial animus, because enthusiasm was unrelated to the job qualifications for trainmaster or the interview questionnaire the panel abandoned, and because panelists' testimony regarding Ross's interview demeanor contrasted with their testimony that he was normally outgoing and "animated." Ross notes that some panelists knew of his long tenure with the Railroad - including his experience in what he considered to be the comparable yardmaster position - but that they failed to share this information, and he also notes that the panel did not review personnel records.

The Railroad responds that interview performance constituted a legitimate basis for recommending whom to hire into a non-union, supervisory position, where seniority was not determinative. The Railroad argues that using enthusiasm as a cover for discrimination would require an unlikely conspiracy among panelists and that the panel's decision not to recommend three white candidates because of poor interview performances indicates it instead based its decisions on interview performance. The Railroad further argues that evidence shows the panelists agreed Ross performed poorly in his interview and that he was not recommended for that reason.

The ALJ found the panelists' testimony regarding hiring criteria persuasive because, although subjective, enthusiasm for the position served a legitimate business purpose and was related to the job description, especially given the position's supervisory nature. The ALJ found persuasive the panelists' testimony that Ross was not recommended because he failed to show enthusiasm, despite testimony that he normally was outgoing. Ross testified to being annoyed during his interview, and panelists testified that they felt his mention of wanting a higher pension indicated he was solely interested in how the position could benefit him.

The Ninth Circuit repeatedly has stated that use of subjective hiring criteria should be closely scrutinized because such use readily can serve as a cover for discrimination. It has favorably cited the Tenth Circuit's observation that "subjective criteria such as 'dedicated' and 'enthusiasm' may offer a convenient pretext for giving force and effect to prejudice, and can create a strong inference of employment discrimination." We therefore closely examine the Rail road's use of subjective criteria.

Panelists testified that they based their recommendation decisions not just on candidates' enthusiasm for the position but also on their ability to communicate. Ross is incorrect that these criteria were unrelated to the trainmaster qualifications or to the interview questionnaire. The position description listed "communication" and "supervision and control" as job responsibilities. A trainmaster's duties include "[p]rovid[ing] employees with feedback on specific issues relating to job performance." Given the position's supervisory nature, it makes sense that the position description would place importance on an ability to communicate clearly with subordinates.

The interview questionnaire reflected the position description's emphasis on communication. One question read: "Good communicating skills are necessary to be an effective supervisor. Describe your communicating skills." The questionnaire further indicated that enthusiasm was an important hiring criterion. For example, one question asked, "How will the Alaska Railroad benefit from you being selected for this position?"

Ross suggests that the panel wholly abandoned the position description and questionnaire, but this was not the case. The panel did not ask all the questions to all the candidates, and it abandoned the grading system because of this and because of a lack of direction on using the grading system. But some panelists made notes serving as a reasonable proxy for grading enthusiasm and ability to communicate. For example, three panelists wrote that Ross said he wanted a better "high three" for his pension. Three wrote that Ross mentioned his supervisory experience; two wrote that he said he enjoyed working with people. Two wrote that he said he wanted the position to support his new wife. One wrote that he "did not offer a lot of info [and] did not explain in great detail on some of the questions."

The panelists' testimony that recommendation decisions were based on interview performance is consistent with an emphasis on enthusiasm and ability to communicate. For example, panelists testified that they felt Ross performed poorly in his interview because he gave short answers, which did not convey his desire to become trainmaster, and because he appeared to feel entitled to the position. Ross discounts this testimony because several panelists knew him to be normally outgoing, but at the hearing he admitted that he was "annoyed" when Flynn arrived late to the interview, which may well have affected Ross's demeanor. Regardless, panelists testified that they were concerned with candidates' enthusiasm for the trainmaster position, not whether they were generally outgoing or animated.

We find unpersuasive Ross's arguments that panelists who knew of his long tenure with the Railroad and his yardmaster experience should have shared this information and that the panelists should have consulted personnel records. Ross essentially suggests that the panel should have decided whom to recommend based on candidates' experience. But as the ALJ observed, the trainmaster position was supervisory and non-union; mere tenure was not determinative. And the ALJ found credible the testimony that the new trainmaster and former yardmaster positions materially differed and that Ross failed to inform the panel of relevant aspects of his experience. Although Ross testified that he stressed his experience in his interview, we generally defer to the fact finder's credibility determinations when reviewing administrative adjudications for substantial evidence. We therefore conclude that the ALJ's finding that the hiring criteria were not pretext for discrimination is supported by substantial evidence.

The ALJ also discounted the possibility that racial animus might have played a part in the panel's decision not to recommend Ross because any one panelist's prejudices were unlikely to influence the four other panelists. The Railroad urges us to adopt this position, arguing that accepting Ross's claim requires finding a conspiracy between panelists to use lack of enthusiasm as a cover for discrimination. But this is not necessarily the case. It is possible that the panel intended to base its recommendation decisions on some combination of enthusiasm, communication, and interview performance; that it decided not to recommend Ross for discriminatory reasons; and that it then used the criteria as a post-hoc rationalization for its decision. Such a scenario would not necessitate a conspiracy. Rudd, whose use of the nickname "Black Magic" may be probative of racial prejudice, was the Anchorage terminal superintendent and would have supervised Ross had he been hired as trainmaster. Other panelists may have deferred to Rudd's judgment on which candidates to recommend; if for discriminatory reasons Rudd decided that Ross should not be recommended, then the rest of the panel may have gone along. Ross's non-recommendation might have been based on discrimination, even if the majority of the panel had no discriminatory intent.

Enthusiasm, communication, and interview performance being post-hoc rationalizations for not selecting Ross finds some support in the fact that, although the Railroad stated it did not hire Ross and three white candidates because of poor interview performance, only interview notes for the three white candidates clearly indicated significantly poor performance. Rudd's and another panelist's notes included evaluations of candidates' interview performance. Rudd described one white candidate as a "poor interview," another as "not a chance - poor," and the third as "didn't answer half of our questions - not a candidate." The other panelist described one white candidate as "not a strong personality"; that candidate "cried throughout [the]

interview." Yet neither Rudd nor the other panelists made any similarly striking notes about Ross's interview performance. If Ross interviewed so poorly that the panelists decided not to recommend him for that reason, one would expect to find interview notes similar to those for the other candidates not hired because of poor interview performance. Other than one panelist's notes that Ross "[d]id not offer a lot of info[,] did not explain in great detail on some of the questions," panelists' notes contain no express indication of Ross's alleged poor communication or sense of entitlement that they later testified were reasons for not recommending him.

Panelists' focus on Ross's desire for a better "high three," both in interview notes and testimony, is suspect. An African-American former employee testified that during an interview for a position similar to trainmaster, an interviewer accused him of being interested only in earning his "high three." He testified that the interviewer later told him that he should not get the raise that came with the promotion. Rudd also interviewed that former employee and may have made a comment implying the employee was too lazy for the job, although the employee conceded that someone else may have made the comment. Despite being circumstantial, Rudd's involvement in the hiring process for both positions and alleged similar concern about the benefits accruing from a promotion - particularly concern about "high three" - suggest that panelists' invocation of Ross's sense of entitlement may have been tainted by racial animus. And the Railroad's denial of promotion benefits to African-American employees is supported by Ross's testimony that when he became yardmaster an attempt was made to give his evening-shift differential to a white employee, "because they sa[id] that he was doing more [of] the work than I was." That white employee was Rudd.

4. Tenure and experience

Ross also argues that the Railroad's decision to leave trainmaster positions open rather than hire him, despite his having more years of experience than any other candidate and being the only candidate to have served in the allegedly similar yardmaster position, demonstrates discriminatory intent. The Railroad responds by citing the ALJ's recommendation that Ross's experience was not particularly relevant given the differences between the former yardmaster and new trainmaster positions and the trainmaster position's merit-based nature. The Railroad further stresses that Ross's tenure was not significantly longer than that of the four candidates selected for Anchorage trainmaster positions.

Although Ross had the longest tenure with the Railroad, it was not significantly longer than the tenure of other candidates. Compared to Ross's 36 years with the Railroad, most candidates - including those not selected - had worked there for 20 to 30 years. The four candidates hired as Anchorage trainmasters had been with the Railroad for a long time - one for 22 years, two for 29 years, and one for 30 years. Ample evidence supports the ALJ's findings that the position was merit based and that longevity with the Railroad was not a major factor in the hiring decisions. Even assuming Ross's three years in the former yardmaster position distinguished his experience, his qualifications were not "clearly superior" to those of other candidates - the ALJ found credible the testimony that the new trainmaster and the former yardmaster positions differed. The ALJ also found credible the testimony that Ross failed to inform the panel of relevant aspects of his experience and how he qualified for the new trainmaster position.

5. Absence of African-American employees in management positions

Ross briefly argues that the absence of any African-American managers in the transportation division augments the other evidence that the Railroad discriminated against him. The Railroad observes that the ALJ expressly discounted the significance of this fact, stating that "[w]ithout more information, it is impossible to determine whether the lack of minority supervisors is an anomaly that suggests discrimination, or the result of insufficient minority applicants. Therefore, the unexplained dearth of minority supervisors is of little, if any, probative or persuasive value." The Railroad stresses that this passage relies on U.S. Supreme Court precedent indicating the importance of statistical comparisons to establishing a pattern of discrimination.

There is some evidence that the absence of minorities in management is attributable to discrimination. Ross testified that when he had been yardmaster, an apparently white employee Ross had been training was promoted into a management position for which Ross had applied. An African-American former employee testified to being turned down for a position for racially suspect reasons. Still, this evidence is anecdotal and certainly not determinative.

6. Conclusion

Ultimately we review the Commission's decision for substantial supporting evidence in light of the whole record. Given the hiring process and use of subjective criteria, considered together with Rudd's use of the nickname "Black Magic," Ross's experience, and anecdotal evidence of African-Americans being denied other managerial positions, a fact finder might have determined that intentional or unintentional racial animus prevented Ross from being hired as a trainmaster. But the evidence detracting from the Commission's contrary decision is not dramatically disproportionate to the supporting evidence; we cannot conclude that the ALJ's adopted recommendation necessarily lacked substantial supporting evidence. The ALJ found credible the panelists' testimony about why Ross was not recommended, concluding that it likely was not fabricated and was related to the responsibilities of the trainmaster position.

We therefore conclude - based on the appropriate deferential standard of review - that it was not error for the Commission to determine Ross did not establish that the reasons the Railroad offered for not hiring him were pretextual.

V. CONCLUSION

The superior court's decision to uphold the Commission's decision is AFFIRMED.

      411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

      "[T]he term 'direct evidence' refers to the quantum of proof ; it is not used as an antonym for 'circumstantial evidence.' In order to show direct evidence [of discriminatory intent,] the plaintiff must 'at least offer either direct evidence of prohibited motivation or circumstantial evidence strong enough to be functionally equivalent to direct proof.' " Smith v. Anchorage Sch. Dist. , 240 P.3d 834, 840 (Alaska 2010) (emphasis in original) (first quoting Kinzel v. Discovery Drilling, Inc. , 93 P.3d 427, 434 (Alaska 2004) ; then quoting Mahan v. Arctic Catering, Inc. , 133 P.3d 655, 662 (Alaska 2006) ).

      See VECO, Inc. v. Rosebrock , 970 P.2d 906, 918 (Alaska 1999) ("In determining whether an employer has violated [Alaska's Human Rights Act] when there is no direct evidence of discriminatory intent, we have adopted the three-part framework used in Title VII cases."); Peterson v. State, Dep't of Nat. Res. , 236 P.3d 355, 364 (Alaska 2010) ("Because it is 'usually impossible' for an employee to prove that the actions of an employer were motivated by discriminatory intent, we have adopted the three-part pretext analysis ... for claims of employment discrimination where there is no direct evidence of discriminatory intent, known as the McDonnell Douglas test.").
      If there is "direct evidence" of discriminatory intent in a mixed motive case, we apply the framework from Price Waterhouse v. Hopkins , 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), superseded by statute , Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074. Era Aviation v. Lindfors , 17 P.3d 40, 44 (Alaska 2000), superseded on other grounds by regulation as stated in Moody v. Royal Wolf Lodge , 339 P.3d 636, 640 (Alaska 2014). Under the Price Waterhouse framework for mixed motive cases - those "based on a mixture of legitimate and illegitimate considerations" - if the plaintiff produces direct evidence of discriminatory intent, the burden shifts to the defendant to show that the decision would have been the same absent the influence of discriminatory intent. Id. (quoting VECO , 970 P.2d at 920-21 ). Ross argues that the explanations why he was not hired were pretextual; he does not argue that this is a mixed motive case.

      Raad v. Alaska State Comm'n for Human Rights , 86 P.3d 899, 904-05 (Alaska 2004).

      Id. at 905.

      Id . (quoting VECO , 970 P.2d at 919 ).

      Id .

      Id . (quoting Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ).

      See State, Dep't of Fish &Game, Sport Fish Div. v. Meyer , 906 P.2d 1365, 1375 (Alaska 1995), superseded on other grounds by statute, AS 18.80.112(b), as recognized in Huit v. Ashwater Burns, Inc. , 372 P.3d 904, 914 n.52 (Alaska 2016). When Ross filed his complaint, the Commission was authorized to dismiss complaints only for lack of substantial evidence; in 2006 the legislature enacted AS 18.80.112(b), allowing the Commission to dismiss complaints for prudential reasons. See Toliver v. Alaska State Comm'n for Human Rights , 279 P.3d 619, 623 n.3 (Alaska 2012).

      Meyer , 906 P.2d at 1375.

      Raad , 86 P.3d at 905 (quoting Burdine , 450 U.S. at 256, 101 S.Ct. 1089 ).

      The superior court cited the following cases: Xin Liu v. Amway Corp. , 347 F.3d 1125, 1136-37 (9th Cir. 2003) ; Jauregui v. City of Glendale , 852 F.2d 1128, 1135-36 (9th Cir. 1988) ; Atonio v. Wards Cove Packing Co. , 810 F.2d 1477, 1481 (9th Cir. 1987) (en banc); Nanty v. Barrows Co. , 660 F.2d 1327, 1334 (9th Cir. 1981), overruled on other grounds by O'Day v. McDonnell Douglas Helicopter Co. , 79 F.3d 756, 760 (9th Cir. 1996).

      Pub. Safety Emps. Ass'n, AFSCME Local 803, AFL-CIO v. City of Fairbanks , 420 P.3d 1243, 1248 (Alaska 2018) (quoting State, Dep't of Admin., Div. of Ret. & Benefits v. Shea , 394 P.3d 524, 528-29 (Alaska 2017) ).

      Pyramid Printing Co. v. Alaska State Comm'n for Human Rights , 153 P.3d 994, 998 (Alaska 2007) ("A determination by the Human Rights Commission will stand if it is supported by substantial evidence.").

      Local 803 , 420 P.3d at 1248 (quoting Shea v. State, Dep't of Admin., Div. of Ret. & Benefits , 267 P.3d 624, 630 (Alaska 2011) ).

      Id. (emphasis in original) (quoting Shea , 267 P.3d at 634 n.40 ).

      See VECO, Inc. v. Rosebrock , 970 P.2d 906, 918 (Alaska 1999) ; Peterson v. State, Dep't of Nat. Res. , 236 P.3d 355, 364 (Alaska 2010).

      See State v. Pub. Safety Emps. Ass'n , 235 P.3d 197, 202 (Alaska 2010) (stating in appeal of arbitration clearing police officer of multiple allegations of misconduct that "[i]f we were reviewing this case in the first instance, or under a less deferential standard, we likely would not have reached [the same] conclusion").

      Local 803 , 420 P.3d at 1248 (emphases in original) (quoting Shea , 267 P.3d at 634 n.40 ).

      See Xin Liu v. Amway Corp. , 347 F.3d 1125, 1136 (9th Cir. 2003) ("[S]ubjective evaluations ... are particularly 'susceptible of abuse and more likely to mask pretext.' " (quoting Weldon v. Kraft, Inc. , 896 F.2d 793, 798 (3d Cir. 1990) )); Jauregui v. City of Glendale , 852 F.2d 1128, 1135-36 (9th Cir. 1988) ; Atonio v. Wards Cove Packing Co. , 810 F.2d 1477, 1484 (9th Cir. 1987) (en banc) ("Subjective practices may well be a covert means to effectuate intentional discrimination ...."); Nanty v. Barrows Co. , 660 F.2d 1327, 1334 (9th Cir. 1981) ("Subjective job criteria present potential for serious abuse and should be viewed with much skepticism."), overruled on other grounds by O'Day v. McDonnell Douglas Helicopter Co. , 79 F.3d 756, 760 (9th Cir. 1996).

      Xin Liu , 347 F.3d at 1137 (quoting Lujan v. Walters , 813 F.2d 1051, 1057 (10th Cir. 1987) ).

      Tesoro Corp. v. State, Dep't of Revenue , 312 P.3d 830, 837 (Alaska 2013) ("In applying [the substantial evidence] standard, we will not ... re-evaluate the fact finder's credibility determinations.").

      See Local 803 , 420 P.3d at 1248 ("The substantial evidence test is highly deferential, but we still review the entire record to ensure that the evidence detracting from the agency's decision is not dramatically disproportionate to the evidence supporting it such that we cannot 'conscientiously' find the evidence to be 'substantial.' " (emphasis in original) (quoting Shea , 267 P.3d at 634 n.40 )).


source: Caselaw Access Project

author: CARNEY, Justice.

license: Public Domain

text:
    Billy Dean SMITH and Jacob Lee Anagick, Appellants, v. State of Alaska, DEPARTMENT OF CORRECTIONS, Nancy Dahlstrom, Commissioner, Alaska Department of Corrections, in her official capacity, and Unknown Department of Corrections Employees, in their official capacities, Appellees.
    Supreme Court No. S-16711
    Supreme Court of Alaska.
    August 30, 2019
    Billy Dean Smith, pro se, Seward, and Jacob Lee Anagick, pro se, Kenai, Appellants.
    Matthias Cicotte, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellees.
    Before: Bolger, Chief Justice, Stowers, Maassen, and Carney, Justices. [Winfree, Justice, not participating.]
   CARNEY, Justice.

I. INTRODUCTION

Two prisoners in Alaska Department of Corrections (DOC) custody were placed in administrative segregation pending an investigation and disciplinary proceedings related to an alleged escape attempt. The disciplinary decisions were later overturned on appeal to the superior court based on procedural defects. However, the prisoners had lost their Prison Industries jobs because of the administrative segregation placements. They filed a civil suit against two DOC officers in superior court, alleging due process violations and seeking damages for lost wages and property. The case was removed to federal court; the federal judge ruled that the inmates lacked a constitutionally protected interest in their jobs and that the DOC officers were entitled to qualified immunity.

Meanwhile, the prisoners filed another complaint in the superior court, this time naming the officers in both their official and individual capacities and raising due process claims under both the United States and Alaska Constitutions. After both parties cross-moved for summary judgment, the superior court granted summary judgment for the DOC officers. The court found that, although the federal judgment did not bar the prisoners' complaint under the doctrine of res judicata, their constitutional claims lacked merit and the DOC officers were entitled to qualified immunity.

The prisoners appeal, arguing that they have a constitutionally protected interest in their jobs; that this interest was clearly established and therefore precludes a qualified immunity defense; that the superior court made various procedural errors; and that it did not adequately instruct the unrepresented prisoners on how to pursue their claims. Because we find that the administrative segregation hearings conducted by DOC satisfied any due process requirements to which the prisoners may have been entitled, and because the superior court did not abuse its discretion in any of its procedural rulings, we affirm the superior court's grant of summary judgment.

II. FACTS AND PROCEEDINGS

A. Facts

Billy Dean Smith and Jacob Lee Anagick are prisoners in DOC custody. In 2011 they were housed at Lemon Creek Correctional Center and worked in a Prison Industries program providing laundry services to the Alaska Marine Highway System.

On September 12, 2011, Lemon Creek officers conducted a "shakedown," or unannounced search, of the prison employment building based on information they had received "concerning a plan of an escape." According to the incident reports on the "shakedown," DOC officers found potential escape implements - lengths of rope, a tarp, clothing that had not been issued by Lemon Creek, and a trash bag holding pieces of dry wood and empty condiment bottles - at Smith's and Anagick's work stations. The reports do not specify the source of the tip, although Smith and Anagick apparently believed the informant to be an officer. Smith and Anagick claimed that the informant did not specifically name any of the prisoners allegedly planning to escape. Smith and Anagick have consistently denied any intent or plan to escape.

The next day Lemon Creek officers placed Smith and Anagick in administrative segregation pursuant to 22 Alaska Administrative Code (AAC) 05.485. An administrative segregation hearing was held six days later.

The classification committee recommended that the prisoners remain in segregation "[p]ending the outcome of an ongoing investigation," finding that they posed "a substantial risk to the security of the facility" and "a substantial and immediate threat to the public." Lemon Creek's superintendent approved the committee's recommendation a day later. As a result of the administrative segregation placement, Smith and Anagick were terminated from their Prison Industries laundry jobs. Smith and Anagick were transferred from Lemon Creek to Spring Creek Correctional Center in January 2012. Officials at Spring Creek reviewed their administrative segregation placements following the transfer and maintained the placements until May 2012.

In related disciplinary proceedings Smith and Anagick were found to have possessed escape implements. They successfully appealed to the superior court, which overturned the disciplinary decisions because of procedural defects. In his appeal to the superior court Smith also attempted to raise claims for lost wages, but the court concluded that such claims "would have to be brought in a separate civil action."

In September 2013, with their disciplinary appeals pending, Smith and Anagick filed a civil rights action in superior court under 42 U.S.C. § 1983 against the Lemon Creek superintendent and a correctional officer in their individual capacities. They alleged various procedural defects in the administrative segregation classification process. The defendants removed the case to federal court in December 2013.

B. Proceedings

1. Complaint

Smith and Anagick filed another complaint in state superior court in April 2015 while the federal case was still pending. They named as defendants the DOC commissioner and "unknown" DOC employees - whom they believed might include the Lemon Creek correctional officer and superintendent previously sued - in their individual and official capacities. They alleged that they had a liberty interest in continued participation in their laundry jobs under the Alaska Constitution. They also alleged that by failing to hold specific job termination hearings separate from the administrative segregation classification hearings, DOC had violated Smith's and Anagick's due process rights under the Fourteenth Amendment, their right to petition the court for a redress of their grievances under the First Amendment, and their confrontation rights under the Sixth Amendment. Smith and Anagick sought back wages and punitive damages.

2. Relevant motions

Two of the issues raised in the motions before the superior court are relevant to Smith and Anagick's appeal. First, in February 2016 Smith and Anagick moved to sanction DOC and its employees for spoliation of video evidence. They asserted that DOC improperly failed to preserve videos of the September 2011 search of the Lemon Creek prison employment program building, as well as tapes from the subsequent administrative segregation hearings. They claimed the videos of the search would have shown that the escape implements were "not found where an 'unknown' officer allegedly 'found' " them, which was at Smith's and Anagick's workstations. Smith and Anagick argued that DOC officers had allowed the videos to be destroyed knowing that the prisoners planned to challenge their administrative segregation placements and would need the videos as evidence. They requested that "spoliation jury instructions" be given at trial. In September 2016 the superior court granted the motion in part: interpreting "spoliation jury instructions" as "an instruction directing the jury to presume that lost evidence would have been favorable to the plaintiffs," the court stated that it would give such an instruction if the case proceeded to trial.

Second, in March 2016 Smith and Anagick notified the superior court that they had filed another civil suit against DOC officers, Smith v. Busby. In July they moved to consolidate that case with this one. The court denied their motion, finding that consolidation would be premature because the filing fee in Busby had not been paid and because not all the Busby defendants had been served with pleadings from this case. Smith responded with an affidavit stating that the filing fee was "paid in full" prior to the denial of the motion to consolidate. However, it does not appear that he and Anagick renewed their motion or sought reconsideration.

3. Summary judgment

In late March 2016 the federal district court granted summary judgment in favor of the DOC officers being sued in their individual capacities. The federal court concluded that: Smith and Anagick did not have a protected liberty interest in avoiding administrative segregation under the United States Constitution; they did not have a state-created liberty interest that would entitle them to due process protection; and the DOC officers were entitled to qualified immunity because any relevant liberty interest the prisoners might have claimed was not clearly established.

About three weeks after the federal district court's decision, Smith and Anagick moved for summary judgment in their state superior court case. They asserted that their laundry jobs were rehabilitative and that under Ferguson v. State, Department of Corrections they were entitled to due process before they could be terminated. They argued that due process violations at their administrative segregation hearings had deprived them not only of their jobs but of property and wages. They also seemed to assert, apparently for the first time, that DOC failed to properly train officers, although the factual basis for this claim is unclear. Finally, they raised a new spoliation of evidence claim, asserting that DOC employees had destroyed employment contracts Smith and Anagick had signed in 2010 and 2011 for their laundry jobs.

In June 2016 DOC and the officer defendants cross-moved for summary judgment. They argued that: any claims related to job termination and property loss were barred by res judicata because of the federal court decision; the laundry jobs were not rehabilitative and thus not subject to federal or state due process protections; the First and Sixth Amendments did not apply to Smith and Anagick's claims; the inmates had failed to properly plead a "negligent training" claim; and the DOC officers were entitled to qualified immunity.

Smith and Anagick opposed DOC's cross-motion, raising for the first time a claim that DOC had breached the employment contracts it had executed with them by terminating them from their jobs without notice and a hearing. DOC filed a reply; Smith and Anagick then filed a responsive pleading, which the court treated as a sur-reply. In response to DOC's argument in its reply that they lacked a viable contract claim, they argued that to the extent their complaint was "procedurally defective," the court should treat their sur-reply as a motion for leave to amend. They contended that res judicata did not bar their contract claims because those claims "were not ripe for litigation" until their disciplinary appeals were resolved, which did not occur until after the federal case was filed. They also asserted that DOC had violated its own policy, which requires notice and a hearing, if requested, prior to termination from rehabilitative programs. They argued that the "administrative segregation exception" to this policy should not apply because the segregation hearings had not provided "all the [d]ue [p]rocess requisites" that a job termination hearing under DOC policy should provide.

Following oral argument on the summary judgment cross-motions, the superior court granted summary judgment to DOC and its officers in April 2017. The court determined that res judicata did not bar Smith and Anagick's claims, but concluded that they did not have a protected liberty interest in their jobs because they had not established that the jobs were "rehabilitative" under Ferguson . As a result, the court concluded that the administrative segregation placements and job terminations had not violated due process. The court also determined that Smith and Anagick's First and Sixth Amendment claims lacked merit and that the prisoners had failed to state a cognizable claim for loss of property. Finally, the court found that the DOC officers were entitled to qualified immunity for both the federal and state law claims.

Smith and Anagick appeal, arguing that they do have a clearly established liberty interest in their jobs under Ferguson and that the superior court made various procedural errors.

III. STANDARDS OF REVIEW

"We review a grant of summary judgment de novo[,] ... review[ing] the facts in the light most favorable to the non-moving party and draw[ing] all factual inferences in the non-moving party's favor." We will uphold a grant of summary judgment "if there are 'no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.' " While "[t]he evidentiary threshold necessary to preclude the entry of summary judgment is low," the evidence cannot be "based entirely on 'unsupported assumptions and speculation' and must not be 'too incredible to be believed by reasonable minds.' "

"We review issues concerning constitutional rights of inmates de novo." "Whether an inmate has received procedural due process is an issue of constitutional law that we review de novo." We also review de novo "[t]he applicability of both state and federal immunity."

We "review the denial of a motion to amend a pleading for abuse of discretion." An abuse of discretion occurs "when the decision on review is manifestly unreasonable, " but the trial court has discretion to "deny such a motion where amendment would be futile because it advances a claim or defense that is legally insufficient on its face." "We use our independent judgment to determine whether such an amendment would be legally insufficient."

"We review the denial of a motion to consolidate for abuse of discretion." The abuse of discretion standard also applies to the superior court's "decisions about guidance to a pro se litigant." "An abuse of discretion exists when a party has been deprived of a substantial right or seriously prejudiced" as a result of the court's ruling.

IV. DISCUSSION

A. Smith And Anagick Were Not Denied Due Process.

Smith and Anagick rely on Ferguson v. State, Department of Corrections to argue that their laundry jobs were rehabilitative and that, as a result, they had a state constitutional interest in retaining those jobs. They contend that they were entitled to notice and separate job termination hearings prior to their removal from the Alaska Marine Highway System laundry program and that DOC denied them due process by not holding such hearings. In Ferguson we held that prisoners' right to rehabilitation, guaranteed by the Alaska Constitution, includes the right not to be terminated from rehabilitative programs without due process. We recognize that Smith's and Anagick's laundry jobs appear to share some of the characteristics we have previously found relevant in determining a program to be rehabilitative. But we do not reach the question whether Smith and Anagick had a protected property or liberty interest in their jobs because, even assuming they did, we conclude they received due process.

We have previously considered prisoners' due process claims under the Mathews v. Eldridge balancing test. This test requires us to consider three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and [third], the [State]'s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.[ ]

Smith and Anagick assert a private interest in their continued participation in jobs that they characterize as rehabilitative. But even assuming that their jobs were rehabilitative and thus subject to constitutional due process protections, the proceedings for their placement in administrative segregation satisfied any due process requirements that might have attached to their interest in retaining their jobs. The applicable regulation provides that a prisoner placed in administrative segregation must be given a classification hearing "no later than three working days after placement" unless the prisoner requests a continuance or DOC establishes good cause to postpone the hearing by up to 24 hours. Smith and Anagick were given such a hearing; within days of their placement in administrative segregation, a classification committee determined that they posed "a substantial risk to the security of the facility" and that the placement was appropriate. The superintendent approved the committee's recommendation as required by regulation.

To the extent that Smith and Anagick argue that separate termination hearings would have provided procedural protections greater than those they received at the administrative segregation hearings, there is no evidence in the record to support that. DOC's policies and procedures indicate rather that removal from rehabilitative programs involves procedures almost identical to those for placement in administrative segregation: notice of the reason for removal and a classification hearing before a committee or hearing officer whose decision is reviewed by the superintendent. In fact, procedural protections for administrative segregation placement appear more protective: 22 AAC 05.485 provides that "a prisoner must be granted a classification hearing as soon as possible" when placed into administrative segregation, and that the superintendent must review the decision, while DOC's policy for removal from rehabilitative programs provides that a prisoner may request a hearing and may ask the superintendent to review the decision. The "probable value, if any, of [the] additional or substitute procedural safeguards" that Smith and Anagick seek would therefore be minimal, if not nonexistent.

In addition, relevant DOC policies and procedures appear to contemplate termination from a rehabilitative program as a consequence of placement in administrative segregation without the need for an additional hearing. Policy 808.04 governs removal of prisoners from rehabilitative and court-ordered treatment programs and generally requires a notice of intent and opportunity for a classification hearing prior to removal. But section VII(A) of the policy indicates that such procedures are not required in the case of "removal as a necessary condition of the prisoner's placement in administrative segregation." That is exactly what happened here: Smith and Anagick were removed from their jobs as a direct consequence of their placement in administrative segregation.

Smith and Anagick assert that the administrative segregation classification hearings did not provide adequate process with respect to their job terminations because "those hearing ... decisions [were] based on the unverified hearsay of an unknown officer." But to the extent that Smith and Anagick argue that the use of hearsay violated their Sixth Amendment right to confront witnesses, we note that the Sixth Amendment does not apply to civil proceedings. And while prisoners have a due process right under the Alaska Constitution to confront adverse witnesses in disciplinary hearings when they face punitive segregation, we have not extended this protection to administrative segregation hearings or hearings concerning removal from a rehabilitative program. And nothing in the statutes, regulations, or DOC policies governing administrative segregation or termination from rehabilitative programs prohibits the use of hearsay in those proceedings.

We conclude that Smith and Anagick received adequate process prior to their termination from the laundry jobs via the administrative segregation classification hearings. Even assuming that they had a protected liberty interest in their jobs under Ferguson , the administrative segregation hearings satisfied any due process to which the prisoners may have been constitutionally entitled. We therefore affirm the superior court's award of summary judgment to DOC.

B. The Superior Court Did Not Abuse Its Discretion By Denying Smith And Anagick's Motions To Amend Their Complaint And Consolidate Cases.

1. The superior court did not abuse its discretion by not instructing or allowing Smith and Anagick to amend their complaint.

Smith and Anagick argue that the superior court "erred by not allowing [them] to amend their pro se complaint to survive summary judgment." In their summary judgment motion, their opposition to DOC's cross-motion for summary judgment, and their sur-reply to DOC's reply to their opposition, Smith and Anagick raised a number of claims in addition to those pled in their complaint. They claimed that DOC was "responsible for the lack of training" of an "unknown" DOC employee, which the parties later characterized as a negligent training claim; breach of an employment contract that provided for notice and hearing prior to termination; and spoliation of evidence. In response, DOC argues that Smith and Anagick's claims were meritless and that the superior court was within its discretion to deny their request to amend their complaint to include those claims.

a. Negligent training claim

Smith and Anagick assert that the superior court "erred by not having [them] amend the complaint with the negligent training matters." DOC argues that this claim is waived because Smith and Anagick's brief offers "only a section heading with no argument" to support it. Even if it is not waived, DOC argues that this claim lacks merit because Smith and Anagick do not explain how DOC's alleged failure to train officers to identify themselves breached a duty or caused them damages.

Smith and Anagick first raised a purported negligent training claim in their motion for summary judgment. They seemed to allege that DOC had a duty to train its officers to identify themselves, and that the officer who conducted the shakedown and supposedly found the escape implements was not named at their hearings because that officer had not received this training. The court does not appear to have advised Smith and Anagick to add a negligent training claim to their complaint, but in its summary judgment order found that Smith and Anagick offered "allegations but little evidentiary support to back up their claims," including their negligent training claim.

Even assuming that the informant was an anonymous DOC officer who failed to self-identify because of poor training, Smith and Anagick make no showing that DOC's reliance on such a source violated their constitutional rights. An argument that an officer's anonymity denied them an opportunity to confront that officer at their administrative segregation hearings would be a Sixth Amendment claim that is not applicable to a non-criminal proceeding. And we have already determined that they received adequate procedural protections at the administrative segregation hearings. Any lack of training therefore has not damaged them or deprived them of any rights. The superior court did not abuse its discretion by not instructing them or allowing them to amend their complaint with a negligent training claim.

b. Breach of contract claim

Smith and Anagick first raised a breach of contract claim in their opposition to DOC's cross-motion for summary judgment. They argue that the superior court should have allowed them to amend their complaint to include this claim and should have instructed them on the proper procedure to do so. They assert their contract claim would have survived summary judgment because their employment contracts for the laundry jobs - which are not part of the record - entitled them to notice and a hearing prior to termination, independent of any due process right to a hearing. They do not cite contractual language explicitly providing for notice or a hearing but argue instead that, because a contract term provided for termination without notice during a 30-day "probation" period, they were implicitly entitled to notice after the probation period. DOC counters that any breach of contract claim would have been futile because Smith's and Anagick's "employment was not subject to due process protections, and ... prisoners are not entitled to the contractual employment protections of state employees."

Even assuming that the sample contract is identical to the ones Smith and Anagick purportedly signed, it does not confer a right to procedural protections beyond what the prisoners received in this case. It is silent as to an employee's right to any proceedings prior to termination. The sample employment contract specifies that an employee may be terminated without notice not only during the initial 30-day probation period, but also after two unexcused absences or if the employee is "found to be associated ... or caught with any contraband." (Emphasis omitted.) This appears to comport with the DOC policy allowing removal from a rehabilitative program without a separate hearing if the removal is a consequence of placement in administrative segregation.

A court's duty to instruct self-represented litigants depends on the facts and circumstances of the case before it; that duty does not require the court to "compromise [its] impartiality" or "act as an advocate for one side." The record contains no contract providing any procedural rights beyond DOC's existing policies and procedures. The administrative segregation hearings followed those procedures and, as we have concluded, satisfied due process. The superior court therefore did not abuse its discretion by not instructing them to amend their complaint.

c. Spoliation claim

Smith and Anagick argue that the superior court erred by not allowing them to amend their complaint with a spoliation claim and by not holding a "spoliation evidence hearing" as they requested. They contend that Lemon Creek's superintendent had a duty to ensure preservation of the videotapes of the September 2011 search and subsequent classification hearings.

DOC responds that the spoliation claims are moot because the superior court granted Smith and Anagick relief on their claim of spoliation of video evidence. We agree. The superior court granted Smith and Anagick's request for "spoliation jury instructions" - which it interpreted as an instruction to assume that the evidence that had been lost or destroyed would have been favorable to Smith and Anagick - in September 2016. But because the superior court subsequently granted summary judgment for the DOC officers, no trial was held, and no jury instruction was given. It was therefore not an abuse of discretion for the superior court not to allow Smith and Anagick to add a spoliation claim to their complaint.

2. The superior court did not abuse its discretion by declining to consolidate Busby with this case.

Smith and Anagick also argue that the superior court erred by not consolidating their other civil case, Smith v. Busby , with this case. In support of this contention, they assert only that the filing fee in Busby was paid prior to the court's denial of the motion to consolidate. DOC responds that "the decision of whether to grant a motion to consolidate is firmly within the superior court's discretion," that "any number of reasons ... would warrant a decision not to consolidate," and that Smith and Anagick fail to articulate why not consolidating the cases was an abuse of discretion.

We agree with DOC. Alaska Civil Rule 42(a) provides:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.[ ]

Here the superior court denied Smith and Anagick's motion to consolidate Busby with this case because it deemed the motion "premature," finding first that the filing fee in Busby had not yet been paid and second that the Busby complaint named additional defendants who would have to be served before a consolidation motion could be considered. Smith responded with an affidavit asserting that the filing fee had been "paid in full" along with a printout of the docket from Busby showing the filing fee payments completed just over a week before the court denied the motion to consolidate.

But Smith and Anagick offer no arguments that the court's decision was so manifestly unreasonable that it constituted an abuse of discretion; nor do they assert that they were prejudiced by the failure to consolidate. While the superior court's finding regarding the filing fee was erroneous, and while Smith and Anagick asserted that they had not received copies of the summons to serve on the Busby defendants, there is no indication in the record that they subsequently served the Busby defendants or renewed their motion to consolidate after doing so. Nor do Smith and Anagick explain why consolidation would be warranted, beyond their payment of the filing fee. It was therefore not an abuse of discretion for the superior court to deny the motion to consolidate.

V. CONCLUSION

Because Smith and Anagick received adequate process to protect any constitutional rights arising from their laundry jobs, and because we find no abuse of discretion in any of the superior court's procedural rulings, we AFFIRM the superior court's grant of summary judgment.

      Former 22 AAC 05.485(a), (a)(8) (2011) ("A prisoner may be assigned to administrative segregation if the prisoner ... represents a substantial immediate threat to the security of the facility ....").

      22 AAC 05.485(d) requires a classification hearing "no later than three working days after placement" unless the prisoner requests a continuance or DOC finds that "exceptional circumstances" provide "good cause" to postpone the hearing for up to 24 hours. "Working days" excludes weekends and holidays; January 17, 2011, was Martin Luther King Day. See 22 AAC 05.660(a)(37) (defining "working day"). Smith and Anagick do not raise on appeal the fact that their hearing occurred one working day later than the regulation demands.

      See 22 AAC 05.485(a)(8).

      See 22 AAC 05.485(e).

      The court reversed the disciplinary decisions imposing punitive segregation because the officer who allegedly found the escape implements was not present at the disciplinary hearings. Decision on Appeal, Smith v. State, Dep't of Corr. , No. 1JU-11-01012 CI, at *6 (Alaska Super., July 24, 2014); Order on Appeal, Anagick v. State, Dep't of Corr. , No. 1JU-11-01045 CI, at *8 (Alaska Super., May 27, 2014). See 22 AAC 05.435(a) (providing that if prisoner wishes to call officer who wrote disciplinary report, that officer "shall appear as a witness" at disciplinary hearing); James v. State, Dep't of Corr. , 260 P.3d 1046, 1052-53 (Alaska 2011) (reaffirming prisoner's state constitutional due process right to cross-examine witnesses at disciplinary hearing).

      42 U.S.C. § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...."

      DOC proceeded as if it were a defendant in the case, though the complaint did not name it and it does not appear that the attorney general certified DOC as a defendant in the officers' place. See AS 09.50.253 (providing that suit against state employee is treated as proceeding against State if attorney general certifies that employee acted within scope of his or her employment). The court also assumed DOC was a defendant. Although Smith and Anagick did not list DOC in the caption in superior court, they treated DOC as a defendant in the body of their arguments, and their brief on appeal lists DOC as a party. When the DOC commissioner changed and DOC moved to substitute the new commissioner as a defendant, Smith and Anagick agreed, conceding that they were pursuing claims against the commissioner only in his official capacity. We thus evaluate Smith and Anagick's arguments on appeal as they apply against DOC and its current commissioner in her official capacity.

      See U.S. Const. amend XIV, § 1 ("No State shall ... deprive any person of life, liberty, or property, without due process of law ....").

      See U.S. Const. amend. I ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."); Cal. Motor Transp. Co. v. Trucking Unltd. , 404 U.S. 508, 513, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (recognizing that the First Amendment protects "the right of access to the agencies and the courts").

      See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ....").

      They also sought the return of video game consoles and games they claimed had been improperly seized, but these claims are not at issue on appeal.

      The videos of the search were apparently destroyed because Lemon Creek's recording equipment automatically recorded over its surveillance footage every 30 days unless prison staff manually backed it up to a computer, which they did not.

      See Thorne v. Dep't of Pub. Safety , 774 P.2d 1326, 1331 (Alaska 1989) (holding that where State's failure to preserve video evidence deprived plaintiff of due process, appropriate sanction was to "remand ... with directions to presume that the videotape would have been favorable to [plaintiff]").

      Complaint, Smith v. Busby , No. 1JU-16-00630 CI (Alaska Super., May 18, 2016).

      Smith v. Corcoran , No. 1:13-cv-00010-TMB (D. Alaska Mar. 30, 2016), aff'd by Smith v. Corcoran , 716 F. App'x 656 (9th Cir. 2018) (mem.).

      See, e.g. , Wilkinson v. Austin , 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) ("[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement."); Hewitt v. Helms , 459 U.S. 460, 467-68, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (holding that "narrow range of protected liberty interests" retained by prisoners under Fourteenth Amendment's due process clause did not include interest in remaining in general population and avoiding administrative segregation), abrogated in part on other grounds by Sandin v. Conner , 515 U.S. 472, 482-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

      See Sandin , 515 U.S. at 484, 115 S.Ct. 2293. While state statutes and regulations may "create liberty interests which are protected by the Due Process Clause," these interests are limited to avoiding forms of restraint that "impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. The district court reasoned that although conditions in administrative segregation were "more restrictive than for general population inmates," the deprivations Smith and Anagick faced "[did] not amount to a 'dramatic departure' " from typical conditions and thus did not warrant additional due process protections.

      Under federal law, "qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights ....' " Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). A right is "clearly established" only if "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Saucier v. Katz , 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ), abrogated in part on other grounds by Pearson , 555 U.S. at 236, 129 S.Ct. 808.

      See 816 P.2d 134, 139-40 (Alaska 1991) (acknowledging that "prisoners have an enforceable [state constitutional] interest in continued participation in rehabilitation programs," and thus cannot be terminated from such programs "without a measure of due process of law").

      Smith and Anagick asserted only that "[h]ad the training been proper the [u]nknown [d]efendant would have been properly trained to identify" himself or herself. They may be referring to the fact that the officer informant whose tip led to the September 2011 search was never identified.

      The doctrine of res judicata bars relitigation of an action if "(1) a final judgment on the merits [has been issued], (2) [by] a court of competent jurisdiction, (3) in a dispute between the same parties (or their privies) about the same cause of action." Conitz v. Alaska State Comm'n for Human Rights , 325 P.3d 501, 507 (Alaska 2014) (quoting Angleton v. Cox , 238 P.3d 610, 614 (Alaska 2010) ).

      See State of Alaska, Dep't of Corr., Policies & Procedures 808.04 § VII(D)(4) (2014), www.correct.state.ak.us/pnp/pdf/808.04.pdf.

      See Ferguson , 816 P.2d at 139-40.

      Achman v. State , 323 P.3d 1123, 1126 (Alaska 2014) (quoting Kalenka v. Jadon, Inc. , 305 P.3d 346, 349 (Alaska 2013) ).

      Wright v. Anding , 390 P.3d 1162, 1169 (Alaska 2017) (quoting Hymes v. DeRamus , 119 P.3d 963, 965 (Alaska 2005) ).

      Lum v. Koles , 426 P.3d 1103, 1109 (Alaska 2018) (quoting Crawford v. Kemp , 139 P.3d 1249, 1253 (Alaska 2006) ).

      Id. (quoting Christensen v. Alaska Sales & Serv., Inc. , 335 P.3d 514, 520 (Alaska 2014) (first quoting Peterson v. State, Dep't of Nat. Res. , 236 P.3d 355, 367 (Alaska 2010) ; then quoting Wilson v. Pollet , 416 P.2d 381, 384 (Alaska 1966) )).

      Simmons v. State, Dep't of Corr. , 426 P.3d 1011, 1015 (Alaska 2018).

      Walker v. State, Dep't of Corr. , 421 P.3d 74, 81 (Alaska 2018) (quoting James v. State, Dep't of Corr. , 260 P.3d 1046, 1050 (Alaska 2011) ).

      Smith v. Stafford , 189 P.3d 1065, 1070 (Alaska 2008).

      Lingley v. Alaska Airlines, Inc. , 373 P.3d 506, 511 (Alaska 2016) (quoting Patterson v. GEICO Gen. Ins. Co. , 347 P.3d 562, 568 (Alaska 2015) ).

      Id. (first quoting Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc. , 355 P.3d 503, 508 (Alaska 2015) ; then quoting Patterson , 347 P.3d at 568 ).

      Id.

      Moffitt v. Moffitt , 341 P.3d 1102, 1104 (Alaska 2014).

      Limeres v. Limeres , 367 P.3d 683, 687 (Alaska 2016) (quoting Greenway v. Heathcott , 294 P.3d 1056, 1062 (Alaska 2013) ).

      Id. (quoting Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) ).

      See 816 P.2d 134, 139-40 (Alaska 1991).

      Id. ; see Alaska Const. art I, § 12 (providing that one aim of penal system is "the principle of reformation").

      See Ferguson , 816 P.2d. at 140 (concluding that because program was "voluntary, require[d] application and approval, and confer[red] special privileges," it was rehabilitative, and prisoner could not be removed from it "without a measure of due process"). The laundry jobs were located in a separate building, paid better and offered more benefits than other prison jobs, and may have required an application or recommendation for hire. Smith and Anagick argue that the laundry program, like the program in Ferguson , is therefore rehabilitative. See id.

      424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

      See Barber v. Schmidt , 354 P.3d 158, 161-62 (Alaska 2015) (applying Mathews test to prisoner's motion for right to counsel in proceedings challenging DOC's restrictions on possession of certain video games).

      Mathews , 424 U.S. at 335, 96 S.Ct. 893.

      22 AAC 05.485(d).

      See former 22 AAC 05.485(a)(8) (2011) (authorizing administrative segregation if prisoner "represents a substantial immediate threat to the security of the facility"); see also supra note 2.

      See 22 AAC 05.485(e) ; 22 AAC 05.212(e).

      Compare 22 AAC 05.485(b) -(f) (providing that prisoner assigned to administrative segregation is entitled to notice of reason for confinement, timely classification hearing before classification committee, and review of placement by superintendent), with State of Alaska, Dep't of Corr., Policies & Procedures 808.04 § VII(D), www.correct.state.ak.us/pnp/pdf/808.04.pdf (providing that prisoner facing removal from rehabilitative program is entitled to notice, may request a hearing, and may have decision of hearing officer or classification committee reviewed by superintendent).

      22 AAC 05.485(d) -(e) (emphasis added).

      22 AAC 05.485(d) ; State of Alaska, Dep't of Corr., Policies & Procedures 808.04 § VII(D)(4)(a)-(c) (2014), www.correct.state.ak.us/pnp/pdf/808.04.pdf.

      Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

      State of Alaska , Dep't of Corr ., Policies & Procedures 808.04 § VII(D)(2), (4) (2014), www.correct.state.ak.us/pnp/pdf/808.04.pdf.

      Id. § VII(A)(1).

      The Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." U.S. Const. amend. VI.

      Patterson v. GEICO Gen. Ins. Co. , 347 P.3d 562, 574 n.33 (Alaska 2015) ; see U.S. Const. amend. VI (specifying that it applies "[i]n all criminal prosecutions " (emphasis added)).

      See James v. State, Dep't of Corr. , 260 P.3d 1046, 1052-53 (Alaska 2011) ; 22 AAC 05.435(a) (providing that if prisoner wishes to call as witness at disciplinary proceeding "the member of the facility staff who wrote the disciplinary report, the staff member shall appear as a witness").

      See 22 AAC 05.485(e) (providing that classification committee or hearing officer has burden of establishing that inmate meets at least one of criteria justifying administrative segregation and that committee recommendation "must include the factual findings and evidence relied upon in sufficient detail" to support review, but not imposing specific evidentiary rules); State of Alaska, Dep't of Corr., Policies & Procedures 808.04 § VII(D)(4) (2014), www.correct.state.ak.us/pnp/pdf/808.04.pdf (entitling prisoners to notice of reason for proposed removal from educational or vocational program and to "classification hearing" but specifying no bar on use of hearsay at hearing).

      Since "[w]e may affirm a grant of summary judgment on any basis appearing in the record," Perotti v. Corrs. Corp. of Am. , 290 P.3d 403, 407 (Alaska 2012) (quoting DeNardo v. GCI Commc'n Corp. , 983 P.2d 1288, 1290 (Alaska 1999) ), and because we conclude that Smith and Anagick received adequate process and suffered no constitutional violation, we do not reach the DOC officers' argument that the superior court was correct to conclude they were entitled to qualified immunity. See Diaz v. State, Dep't of Corr. , 239 P.3d 723, 732 n.47 (Alaska 2010) (declining to address qualified immunity question after concluding prisoner's Fourth and Fourteenth Amendment rights were not violated).

      The motion for summary judgment alleges spoliation relating to Smith's and Anagick's employment contracts. They had previously asserted spoliation of video recordings of the workplace search and their subsequent disciplinary hearings. Their spoliation argument on appeal appears to be limited to the video evidence.

      See U.S. Const. amend. VI (specifying that confrontation right attaches "[i]n all criminal prosecutions"). The superior court reversed DOC's disciplinary decisions based on our recognition that the state constitutional right to confront witnesses applies to punitive segregation hearings. Decision on Appeal, Smith v. State, Dep't of Corr. , No. 1JU-11-01012 CI, at *6 (Alaska Super., July 24, 2014); Order on Appeal, Anagick v. State, Dep't of Corr. , No. 1JU-11-01045 CI, at *8 (Alaska Super., May 27, 2014); see James , 260 P.3d at 1052-53 (concluding prisoner's due process and confrontation rights were violated when officer who wrote incident report underlying disciplinary action did not appear at disciplinary proceeding).

      See Lingley v. Alaska Airlines, Inc. , 373 P.3d 506, 511 (Alaska 2016) ("It is within a trial court's discretion ... to deny [a motion to amend] where amendment would be futile because it advances a claim or defense that is legally insufficient on its face." (quoting Patterson v. GEICO Gen. Ins. Co. , 347 P.3d 562, 568 (Alaska 2015) )).

      Smith and Anagick instead rely on a blank, unsigned sample contract, apparently because DOC did not retain their original contracts in their files.

      State of Alaska, Dep't of Corr., Policies & Procedures 808.04 § VII(D)(4) (2014), www.correct.state.ak.us/pnp/pdf/808.04.pdf.

      Bauman v. State, Div. of Family & Youth Servs. , 768 P.2d 1097, 1099 (Alaska 1989).

      Cf. Lingley , 373 P.3d at 511 (finding no duty to allow litigant to amend complaint where amendment would advance facially unviable claim). We also note that, under the Alaska Prison Litigation Reform Act, Smith and Anagick could seek only retrospective relief for a breach of contract claim; they would not be entitled to prospective relief unless they also established violation of a state or federal right. AS 09.19.200.

      See Thorne v. Dep't of Pub. Safety , 774 P.2d 1326, 1331 (Alaska 1989) (finding that "an appropriate sanction" for State's failure to preserve video evidence sought by plaintiff was "to remand the case ... with directions to presume that the videotape would have been favorable to [plaintiff]").

      Complaint, Smith v. Busby , No. 1JU-16-00630 CI (Alaska Super., May 18, 2016).

      Alaska R. Civ. P. 42(a) (emphasis added); see also Baseden v. State , 174 P.3d 233, 242 (Alaska 2008) ("Alaska case law places the decision to consolidate cases firmly within the discretion of the superior court judge.").

      See Lingley , 373 P.3d at 511 (stating that abuse of discretion exists "when the decision on review is manifestly unreasonable" (quoting Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc. , 355 P.3d 503, 508 (Alaska 2015) )).

      See Limeres v. Limeres , 367 P.3d 683, 687 (Alaska 2016) ("An abuse of discretion exists when a party has been deprived of a substantial right or seriously prejudiced by the [superior] court's ruling." (quoting Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) )).