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Lewis v. Donley

May 28, 2009


The opinion of the court was delivered by: John W. Sedwick United States District Judge


[Doc. 97, 114, 118, 123, and 126]


At docket 97, defendants Michael B. Donley and the United States of America (the "government") move to dismiss plaintiff Janet D. Lewis' ("Lewis") tort claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Lewis opposes the motion at docket 106. The government replies at docket 115. The government also moves at docket 114 for leave to file additional factual materials in support of its motion at docket 97. Lewis opposes the motion at docket 116. The government replies at docket 122. In addition, Lewis moves for summary judgment on her retaliation claim at docket 118. The government opposes the motion at docket 125 and cross-moves for partial summary judgment at docket 126. Lewis replies at docket 128 and opposes the government's cross-motion at docket 134. The government replies at docket 137. Both parties have also moved for extensions of time. The government moves for an extension of time to file dispositive motions and motions in limine at docket 123. Lewis opposes the motion at docket 129. The government replies at docket 136. Oral argument was not requested and would not assist the court.


Lewis was an employee of the United States Air Force, 3rd Wing, at Elmendorf Air Force Base in Anchorage, AK. Lewis is African-American. Lewis worked in the Child Development Center Program on Elmendorf Air Force Base and, in March 2002, she was transferred into the position of director of the Katmai Child Development Center. During 2002 and 2003, the Air Force built a new child care center, the Sitka Center. At a January 14, 2003 staff meeting, Lee Tomlinson, chief of the Pacific Command Air Force services, and Susan Fallon, the child development program manager, announced that they would be taking applications for the directorship of the Sitka Center. Tomlinson indicated the Katmai Center would be renovated and that its program would be kept in place. Tomlinson also stated that he intended to keep Lewis and Gena Walker, another Katmai employee, at the Katmai Center. Walker is also African-American.

On March 12, 2003, Lewis saw the job announcement for the Sitka Center directorship position, and she applied. One month later, the Sitka Center opened, and Lewis moved the Katmai operations to the new building in order to permit the Katmai Center to be renovated. The parties dispute whether Lewis was installed as director of the Sitka Center at that time - Lewis claims she assumed the role of director, while the government claims that Lewis remained director of the Katmai Center. On or about April 16, 2003, the list of qualified candidates for the position of Sitka Center director was certified. Among the qualified candidates were Lewis and Mary Barkley, a Family Child Care Center employee. Tomlinson recommended to Fallon and Mr. Bartz, the flight chief for family member services, that they hire Barkley instead of Lewis as the director of Sitka Center. Bartz and Fallon reviewed the applicants' referral briefs and scored the applicants based on the information contained in those briefs. On May 9, 2003, Bartz and Fallon conducted an interview with Lewis for the Sitka Center directorship. On May 23, 2003, Bartz selected Barkley for the directorship. Lewis made several inquiries of Bartz, Fallon and the personnel department to determine her scores on the interview matrix, but Lewis was unable to review her scores. Lewis filed a complaint with the Equal Employment Office of the Air Force on September 2, 2003, alleging illegal racial discrimination in the selection of Barkley over herself.

After Lewis filed her claim with the EEO, she alleges that the child development center management engaged in systematic retaliation for her complaint. Specifically, Lewis claims that Fallon and others overworked her, yelled at and bullied her, disregarded requests for correction of abusive behavior, denied her leave requests, and generally undermined Lewis' ability to do her job. The following is a summary of those allegations and related facts. On June 13, 2003, Fallon asked Lewis to assist Barkley in taking over the Sitka Center and gave Lewis a deadline of June 20, 2003 to leave the main building. Lewis complied with Fallon's requests. On July 10, 2003, Bartz sent an e-mail to Fallon suggesting that Lewis handle a playground certification training program, which Fallon forwarded to Lewis. In the meantime, Lewis was working on renovations to the Katmai Center and preparing for the reopening. Walker and Rosa Adams, another Katmai Center employee, were assigned at the time to assist Barkley in learning how to manage the Sitka Center. Lewis had surgery scheduled during that time period as well, and alleges that she felt overwhelmed. As a result, Lewis e-mailed Fallon regarding her inability to handle the certification program. On August 12, 2003, Lewis was cleared by her doctor to return to work full time. Despite Lewis' protestations about taking on the playground certification, Fallon and Bartz insisted she organize the training. Lewis alleges that, as a result, she had to spend extra hours at the office, and that she had never been tasked with so much work. Dianne Harrison, supervisor of employee relations, instructed Fallon to give Lewis a direct order in the event Lewis refused to perform certain tasks to "be prepared for the fallout of her claiming reprisal for filing an EEO complaint." Lewis nevertheless successfully organized the playground certification training.

On October 13, 2003, Lewis visited Dr. Dale Trombley for work-related stress and anxiety. Later that week, Fallon instructed Lewis to stay out of the Sitka Center building, although it is unclear what prompted such action. On October 30, 2003, Lewis met with Tony Kobussen, deputy chief of the 3rd Wing, to discuss her employment situation. As Lewis explains it, she told Kobussen that she was being overworked and treated differently than other employees. Lewis also alleges that Kobussen promised to review the situation and contact her, but claims that Kobussen ignored her complaints. Lewis approached Kobussen several other times to complain about her workload, and Kobussen discussed Lewis' complaints with Fallon and Bartz. Lewis claims that these meetings resulted in Fallon tasking her with more work. Lewis again asked for stress-related sick leave in December 2003, which Fallon initially denied. Lewis nevertheless met with a doctor over her lunch break and procured a note authorizing Lewis to take the afternoon off. Fallon asked Lewis to fill out a new leave request form to reflect the time Lewis would be away. In early February 2004, Lewis appears to have gotten into two disputes with Barkley over access to a meeting room and the cleanliness of Lewis' pre school classroom, which led Barkley to cease all communications with Lewis. Lewis was written up by Fallon for both incidents. On March 5, 2004, Dr. Trombley certified Lewis for two weeks of medical leave pursuant to the Family Medical Leave Act. Lewis submitted the certification to the personnel department and, on April 2, 2004, Lewis was approved for leave.

Upon her return to work, Lewis was scheduled to have a meeting with Lieutenant Colonel Gary Dzubilo, services commander of the 3rd Wing. Lewis attended the meeting with her EEO representative, Ibraahiym Kadeesh. When Kadeesh introduced himself to Lt. Col. Dzubilo, he canceled the meeting and indicated that he wanted to meet with Lewis alone. Two days later, Lewis met with Lt. Col. Dzubilo and Kobussen by herself. Although Lewis claims that this meeting was intended to be disciplinary in nature, the government denies this contention. After the meeting and throughout the remainder of 2004, Lewis alleges that Fallon and others continued to treat her unfairly. For example, Lewis alleges that Fallon unfairly gave her lower than usual annual ratings, that she was not recommended for a bonus, and that she did not receive an increase in pay for the first time. Moreover, Lewis alleges that Fallon placed negative comments in her file for discussing possible employment openings with another employee.

In June 2004, Lewis returned to the Katmai Center, which had been renovated. Lewis alleges that the renovation did not remedy all of the center's problems, including ineffective heating and cooling, black mold, and inadequate ventilation. Lewis claims broadly that while the Sitka center was fully funded, management failed to request sufficient funds for the Katmai Center. It is undisputed that management determined that the Katmai Center was to be a facility for infants and toddlers, while the Sitka Center was to be a facility for school aged children. Lewis claims that this allocation "guaranteed that the center would lose money" and that she was held responsible for poor fiscal management. In addition, Lewis claims that all Caucasian employees were being routed by management to the Sitka Center, while the Katmai Center was staffed almost exclusively with minority employees. The government denies these contentions.

In October 2004, the parents of a child in the Katmai Center, the Pattersons, requested that their child be transferred to the Denali Child Development Center, another facility on base. While Lewis was processing the request, Mr. Patterson lost his job. Because base policy required both parents to be employed or in school in order to use the child care facilities, the Pattersons no longer qualified and the Denali center denied their request for transfer. The Pattersons therefore sought to make arrangements in the Sitka Center. Lewis, under pressure from management to keep her empty rooms filled, gave the Pattersons' slot to another family on the waiting list. The Pattersons ultimately obtained a slot in the Sitka Center and never went a day without day care. However, Lewis was later written up by Fallon for giving away the Pattersons' slot. When Lewis inquired of Fallon regarding the policies she was alleged to have violated, Fallon responded that there were no such policies governing her conduct. Shortly thereafter, on October 6, 2004, a child at the Katmai Center left the premises without anybody seeing her do so. Because Lewis was out on personal leave, Fallon was responsible for conducting the initial investigation and interviewing the caregivers who were watching the children. Upon her return to work, Lewis was tasked with disciplining the caregivers. Lewis decided that retraining would be an appropriate disciplinary measure, while Fallon disagreed. Lewis was ultimately reprimanded by Fallon for failing to consult with her on the disciplinary action to be taken with respect to the caregivers.

On March 15, 2005, Fallon scheduled a marketing meeting for all employees in the child care centers and stated that everyone was expected to attend. Lewis had a new clerk, who scheduled job applicant interviews at the time of the marketing meeting. Lewis missed the meeting because she was conducting interviews at the time. Fallon explained to Lewis that the meeting was mandatory, and that Lewis should have rescheduled the interviews. On June 16, 2005, Lewis received her 2005 evaluation and was given very low scores. Again, Lewis was not recommended for a bonus or a raise. Lewis alleges that in early July 2005, she entered counseling to help cope with her work-related stress and anxiety. On July 12, 2005, Lewis met with Colonel Robert Douglas and Harrison, supervisor of employee relations, to discuss her evaluation. Harrison thoroughly explained the rating criteria and how the process works. Lewis alleges that she did not receive mid-year feedback from Fallon and that she could not be expected to improve if she was not informed of her failings. Two days later, Lewis was given a notice of proposed suspension by Fallon and, on August 31, 2005, Lewis was suspended for two weeks without pay.

Prior to Lewis' suspension, on August 22, 2005, Fallon gave sworn testimony to the Department of Defense Office of Compliance Investigation investigator Barbara Eves. In her testimony, Fallon stated that Al Anderson of employee management relations told her that it was Fallon's, not Lewis', obligation to find a substitute employee to handle Lewis' responsibilities while she was on leave. Nevertheless, on September 14, 2005, Lewis reported back to work and was immediately reprimanded by Fallon because Walker, one of Lewis' subordinates, missed a meeting while Lewis was on approved leave. Lewis complained to Deshaiser, who allegedly knew what Fallon had done. Lewis subsequently went to see Kobussen and then Col. Scotty Lewis. Kobussen called Lewis back later and assured her that she would not be written up for the incident. On September 15, 2005, Lewis received a letter from Col. Lewis, which stated that it would be inappropriate for the Wing Commander to intervene in the EEO process because of the potential "to negate the impartiality and integrity of the program which are the checks and balances of the EEO process." Lewis alleges that Col. Lewis' letter amounted to a denial of chain of command redress that discouraged her from engaging in the EEO process.

On November 16, 2005, Lewis met with Fallon for her mid-year review. Fallon marked Lewis down on element two of her mid-year review, noting that Lewis had been insolent in refusing to sign a revised performance appraisal for one of the Katmai Center employees. Lewis was also marked down for disrespectful comments she allegedly made in the presence of a subordinate. Lewis was also allegedly marked down for various other transgressions, including an incident in which Lewis apparently caused the Katmai Center to run out of baby formula (which Lewis denies) and an incident in which Lewis complained about the lack of working toilets in the center's adult bathroom. On February 9, 2006, Lewis requested leave for February 10 to work on her EEO case and February 14 for annual leave. On February 9, 2006, Fallon denied Lewis' request and, the next day, denied Lewis' request for reconsideration. Fallon noted that the reason for denial was that the Katmai Center was scheduled to be inspected during the week in question. On February 28, 2006, Lewis alleges she requested official time off to be able to work on her EEO case. Fallon allegedly asked Lewis to identify the individual who would be supervising the Katmai Center during Lewis' absence, despite apparently knowing, based on Fallon's testimony to the Office of Complaint Investigation, that it was her duty to find a substitute. Lewis subsequently filed this lawsuit on March 8, 2006.

On March 28, 2006, Lewis again requested leave. Fallon informed her that she would not sign Lewis' leave application until she found someone to run the center in her absence. Lewis alleges that she again complained to Fallon that she had to procure her own coverage, while other directors had assistants who could perform their duties in their absence. On April 26, 2006, Lewis received a copy of a memorandum issued by the Air Force stating that the child development centers had lost over $128,000 in the fourth quarter of 2005. As a result, center employees were directed to "tighten [their] belts." On May 19, 2006, Fallon gave Lewis her annual review. Lewis contends that she received extremely low ratings and was again not awarded a bonus. Moreover, because Fallon refused to show Lewis her entire core personnel document (which included a job description), Lewis declined to sign her evaluation. In July 2006, Lewis was authorized to take two weeks leave, from July 14 to August 4, 2006. Upon her return, Lewis alleges she discovered that no one had performed her duties while she was away, and that there were numerous tasks left undone. When Lewis sought to have overtime approved in order to permit her to get caught up, Fallon denied her request. Lewis claims that she "felt like an outsider and an outcast, blackballed and disrespected." Lewis filed her second amended complaint with this court on September 1, 2006.

On September 5, 2006, Fallon provided Lewis with another evaluation, which Lewis again declined to sign. Lewis alleges that her ratings were low and contained inaccurate and unfair statements. Shortly before this review, Lewis and the Katmai Center were successfully accredited by the National Association for the Education of Young Children ("NAEYC"). Lewis received several awards from the Pacific Air Forces for her role in preparing the Katmai staff for the accreditation. On September 20, 2006, Fallon and Kathie DeShasier, the new flight chief for family member services, met to discuss lending employees from the Sitka and Denali Centers to Katmai to undergo NAEYC accreditation. On September 22, 2006, Fallon called Lewis to inform her that the Denali and Sitka caregivers would be visiting the Katmai Center on September 27 for accreditation training. On the day of the training, Fallon attended the welcome session of the accreditation training. Lewis alleges that Fallon would not have typically attended this meeting, but did so because Lewis accused Fallon of harassment and intimidation. As a result, Lewis halted the meeting in order to complain to Kobussen, who allegedly ...

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