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Gilbert v. Sperbeck12/9/2005
beck on a theory that his office is a public accommodation or that subsection .230(a) imposed a duty of reasonable accommodation on him.
Furthermore, in her initial briefing Gilbert's discussion of Dr. Sperbeck's alleged failure to provide a suitable chair referred solely to the ADA. Her initial brief in referring to AS 18.80.200 advanced a theory of liability unrelated to Dr. Sperbeck's alleged failure to provide a suitable chair in which to take the examination.
After hearing oral argument, we invited the parties to submit supplemental briefs. Although Gilbert's supplemental brief, filed after Dr. Sperbeck's supplemental brief per our briefing order, seems to suggest that the alleged failure to provide an adequate chair violated AS 18.80.230(a), her initial brief said nothing about such a theory. Gilbert's failure to raise this theory in her initial brief gave Dr. Sperbeck no notice that his original or supplemental briefs should address the topic. Dr. Sperbeck had no opportunity to respond to this argument. Moreover, Gilbert's discussion of the AHRA is so terse and superficial that, even under the lenient standards for pro se litigants, it fails to preserve her AS 18.80.230(a) claim on appeal. We therefore hold that Gilbert has waived her AS 18.80.230(a) claim.
Gilbert also alleged in her complaint that Dr. Sperbeck violated "municipal . . . law" by failing to provide reasonable accommodation for her disability. She does not contend on appeal that Dr. Sperbeck violated municipal law or that municipal law precluded entry of summary judgment for Dr. Sperbeck. We therefore hold that Gilbert has waived this claim as well.
IV. CONCLUSION
For the foregoing reasons, the judgment of the superior court is AFFIRMED.
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