United States District Court, D. Alaska
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 ...