Henry v. Municipality of Anchorage

          ORDER REGARDING MOTIONS AT DOCKETS 81, 100, 142, 163, 179, AND 180

          RALPH R. BEISTLINE UNITED STATES DISTRICT JUDGE

         Pending before the Court are several motions. Defendant Mark Mew seeks summary judgment on the two remaining claims against him: Count 1 for retaliatory discharge and Count V for fraudulent inducement. Docket 81. The Municipality seeks summary judgment dismissing Counts I, II, V, and VI, as well as any claims that seek liability for acts alleged to have occurred prior to June 4, 2013. Docket 100. All of these motions have been opposed. The Court has reviewed the extensive briefing and finds that oral argument is unnecessary.^[1]

         I. STANDARD OF REVIEW

         Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of proof for showing that no fact is in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets that burden, then it falls upon the non-moving party to refute with facts that would indicate a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment is appropriate if the facts and allegations presented by a party are merely colorable, or are not significantly probative. Id., see also In re Lewis, 97 F.3d 1182, 1187 (9th Cir. 1996); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1995).

         II. FACTS

         Plaintiff Anthony Henry had a twenty-three year career with the Municipality of Anchorage as a police officer. He was terminated in April 2015 and this wrongful termination lawsuit followed. The facts relevant to this motion practice are as follows.^[2]

         Sometime in 2011, APD Officer “J.W.” confided in Plaintiff that he had a degenerative disease. In January 2012, an Internal Affairs (“IA”) investigation into J.W. was opened because of his diagnosis, condition, and medication. In April 2012, J.W. was transferred to a different position. Plaintiff reported the transfer to Chief Mark Mew as retaliation, believing that the action taken violated the ADA and APD policies. Plaintiff alleges that it was at this time that APD engaged in retaliatory acts against him, including an unsupported IA investigation, restrictive duty, a psychological evaluation, and oral reprimands.

         In June 2012, J.W. told Plaintiff that he intended to file an EEOC complaint, as well as a complaint with the Municipality’s Office of Equal Opportunity (OEO). Between June and December 2012, Plaintiff asked Chief Mew to stop the wrongful and retaliatory conduct of the APD and its officers. In December 2012, Plaintiff filed his own OEO Complaint regarding wrongful and retaliatory acts taken against him. In January 2013 Plaintiff filed an EEOC complaint.

         In March 2013, APD initiated another IA investigation regarding Plaintiff’s handling of J.W.’s medical diagnosis. However, Plaintiff was not informed of this new IA investigation. Meanwhile, the parties agreed to mediate the EEOC claim. Plaintiff alleges Defendants did not inform EEOC of the new investigation. In June 2013, the parties settled the EEOC claim and then Plaintiff was informed of the IA investigation started in March.

         In August 2013, Plaintiff filed a second EEOC claim alleging violation of the Settlement Agreement and APD policies, based on Chief Mew’s decision to keep the March 2013 investigation a secret, and citing “continued retaliatory conduct.” One month later, in September 2013, the March investigation resulted in a finding that Plaintiff did not violate APD policies regarding issues related to J.W.’s medical status.

         In October 2013, APD superiors made allegations to Chief Mew related to the AK National Guard, including allegations that Plaintiff interfered in drug and sexual assault investigations. Plaintiff would not learn of these allegations until 18 months later. Chief Mew requested that the FBI investigate these allegations in November 2013.

         By February 2014, attempts to settle the second EEOC complaint failed. Chief Mew reassigned Plaintiff to the Special Victim’s Unit and Crimes Against Children Unit in May 2014. In June 2014, Plaintiff requested access to his IA records. Plaintiff filed a grievance and prevailed. Between October and December 2014, Plaintiff was interviewed twice by an investigator hired by the Municipality to investigate allegations regarding the AK National Guard. In March 2015, the Municipality terminated Plaintiff effective April 1, 2015. According to the MOA, Henry’s termination relates to events that occurred in late February 2010 involving two individuals, one of whom was an officer in the Alaska National Guard (“AKNG”) who indicated that he would serve as a confidential informant, but he did not want his name disclosed to the AKNG command staff. The Municipality found that Plaintiff immediately took the information to AKNG General Thomas Katkus, thereby violating the promise of confidentiality made to the informant. Docket 76 at 14.

         III. SUMMARY JUDGMENT MOTIONS

         A. Count 1 - Retaliatory Discharge

         Plaintiff’s First Amended Complaint alleges that by making good faith reports of violations of federal, municipal, and state laws, as well as APD policies, he was engaged in protected activity. Plaintiff also alleges that the Municipality and Chief Mew “promised not to retaliate against him in connection with the settlement of his first EEOC claim.” Docket 1-1 at 9. The Municipality and Mew move for summary judgment on Count I.^[3]

         Mew argues that the retaliatory discharge claim is “frivolous” as to him. Docket 81 at 2. Mew suggests that Plaintiff’s claim under AS 18.80.220 does not permit liability against an individual who is not the employer. Docket 81 at 4 (citing AS 18.80.220). Plaintiff argues that because Chief Mew “aided and abetted” the retaliation meted out by others, he is individually liable. Docket 144 at 8 (citing Mills v. Hankla, 297 P.3d 158, 168 (Alaska 2013)). “The Court in Hankla found that an employee cannot be liable for aiding and abetting when it is that employee’s own conduct that gives rise to the employer’s liability. [But] Hankla expressly allows for individual liability when an employee aids and abets the retaliatory conduct of others.” Id. Plaintiff argues that while the Municipality is vicariously liable for all discriminatory acts of the APD and any employee, “Chief Mew is individually liable because he aided and abetted the overall retaliatory and discriminatory scheme to terminate [him].” Docket 144 at 8. See also Ellison v. Plumbers and Steam Fitters Union Local 375, 118 P.3d 1080, 1087 (Alaska 2005). Plaintiff argues that Mew’s decision to hide the new complaint and delay an Internal Affairs (“IA”) investigation were affirmative actions which rose to the level of “substantial assistance and encouragement” under Alaska law. Docket 144 at 9. He also argues that Mew was in a position to prevent or eliminate the discrimination because he could have disciplined the offending employees and put an end to the retaliatory investigations. Docket 144 at 9. But Mew suggests that Plaintiff’s argument is strained. He says: “Both Mills and Ellison have expressly declined to confirm individual liability under AS 18.80.260.” Docket 171 at 4. To the extent that individual liability is permitted for aiding and abetting, the actor must “know[] that the other’s conduct constitutes a breach of duty and give[] substantial assistance or encouragement to the other.” Ellison, 118 P.3d at 1070. Mew argues that while Henry alleges that Mew engaged in discriminatory or retaliatory acts, he attempts to skirt the prohibition on individual liability by recharacterizing it as “aiding and abetting.” Docket 171 at 4. Plaintiff expressly argues that “Chief Mew encouraged the retaliation and discrimination against [him] by taking ...