dissenting.
I. IIED
I accept, arguendo, the court’s characterization of Beard I and I assume as well that the court is correct in requiring Beard to exhaust his contractual remedies as to individual defendants. The court nevertheless errs, as a matter of fact, in holding that Beard should not be excused from exhausting his contractual remedies as to his claim for IIED. It may be arguable that Beard failed to exhaust his contractual remedies as to the constructive discharge claim.1 Beard’s resignation was the last essential element of that claim. Beard did not specifically request that Senkow grieve a claim “for constructive discharge” after Beard resigned — after the cause of action arose.
However, Beard’s resignation was not an essential element of his claim for IIED. A claim for IIED requires only “(1) that the defendant’s conduct was extreme and outrageous, (2) that the conduct was intentional or reckless, (3) that this conduct caused the plaintiff emotional distress, and (4) that the distress was severe.” Cameron v. Beard, 864 P.2d 538, 548 (Alaska 1993).
Beard did request that Senkow grieve the “pattern of harassment” against him. It is this pattern of harassment which supports both the IIED claim and the constructive discharge claim. Although it is arguable that the constructive discharge claim did not arise until after Beard resigned, no such argument can be made as to the IIED claim. Senkow *14explicitly refused to recognize the pattern of harassment alleged by Beard, which supports his claim for IIED. Under even the court’s stringent interpretation of Casey v. City of Fairbanks, 670 P.2d 1133 (Alaska 1983), Beard has complied with the requirements for excusing his failure to exhaust his contractual remedies as to his IIED claim.2
The court fails to adequately explain why it requires Beard to have asked the union to grieve conduct that occurred “after mid-May 1986.” Op. at 9. The pattern of harassment alleged by Beard prior to that time is sufficient to support his claim for IIED. Senkow’s explicit refusal to grieve this pattern of harassment is sufficient to satisfy the court’s interpretation of Casey. The court’s assertion that Beard “did not timely ask the union to pursue the work conditions that were central to his IIED claims,” Op. at 9, is inaccurate. The judgments against McMullen and Venusti should be affirmed.
II. Constructive Discharge
The rule laid down by the court is a harsh one:
Where an ongoing pattern of harassment in the workplace culminates in an employee’s resignation, the employee must attempt to grieve this involuntary termination even if the union has previously been unresponsive to the employee’s complaints of harassment.
Op. at 7 (emphasis added). In the instant case, we have an employee who consistently requested that his union representative aid him in grieving a pattern of harassment. His union representative consistently denied that such a pattern existed or was grievable. Nonetheless, this court requires Beard to know that such a pattern becomes grievable when he is actually forced to resign. Had Beard but known to invoke the magic words “constructive discharge” following his resignation, he would not be faced with this appeal. '
This formalistic reasoning leads to an unjust result. It requires employees to possess both specific legal knowledge and unreasonable tenacity. Beard made a good faith effort to resolve his overall working conditions through the available grievance procedures. His union failed to come to his aid.. We should require no more than this beforq permitting employees to turn to the courts for the assistance that their unions refuse to provide.
III. Law of the Case
That said, I adhere to the view I expressed in Cameron v. Beard, 864 P.2d 538 (Alaska 1993) (Beard II). In Beard II I dissented from the court’s decision to remand for an evidentiary hearing on the issue of whether Beard was excused from exhausting his contractual remedies. Id. at 551-53 (Compton, J., dissenting). My position was that this issue was raised and resolved in Beard I. Id. at 551. I remain convinced that in Beard I this court “unqualifiedly and unconditionally held that Beard was excused from exhausting his contractual remedies.” Id. at 552. See Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska 1977) (“The doctrine of the law of the case prohibits the reconsideration of issues which have been adjudicated in a previous appeal in the same case.”).
I dissent.
. But see, infra, Parts II and III.
. "Casey requires, at a minimum, that the employee establish that the union explicitly refused to grieve a complaint before the employee is excused from pursuing administrative remedies." Op. at 5.