Sheldon Slade filed an action against an Alaska State Employee alleging a 42 U.S.C. 1981 claim. That claim asserts that the employee discriminated against him. That claim cannot be asserted against a State. The Alaska Attorney General certified that the employee was acting within his scope of employment when Slade’s claim arose. So, the State of Alaska agreed to defend the employee.
Alaska then moved to substitute the State for the employee using Alaska Statute the procedure in AS 09.50.253(c). Once the State was substituted for the employee the State moved to dismiss the 1981 claim. The Superior Court dismissed Slade’s 1981 claim. Slade appealed. The Alaska Supreme Court accepted the appeal on the issue of whether dismissal of the § 1981 claim violated the Supremacy Clause of the United States Constitution and Slade’s constitutional right to a jury trial.
Alaska statute AS 09.50.253(f) specifically precludes the use of the .253(c) procedure in the face of Constitutional claims. Apparently this fact was pointed out in Slade’s opening brief or the Amicus Brief filed the U.S. Department of Justice. Based on the opening briefs the Alaska Attorney General conceded defeat and sought dismissal of the appeal due to the concession.
The question remains, will Alaska not defend its employee’s acting in the scope of their employment? Or, will Alaska defend them on the merits and simply not seek to dismiss the 1981 action after using the .253(f) procedure?
If you’ve been sued for a 1981 discrimination claim in your employment, you should seek independent counsel and not rely solely on your employer.