United States District Court, D. Alaska
ORDER RE MOTION FOR SUMMARY JUDGMENT
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 31 is Defendant's Motion for Summary
Judgment. The motion is fully briefed.[1] Oral argument was
not requested and was not necessary to the Court's
decision.
BACKGROUND[2]
Plaintiff
Jamie Elaine Holladay brought this action alleging employment
discrimination on the grounds of age and disability,
interference with her right to seek medical leave,
defamation, and contractual grievances. Ms. Holladay began
working for Defendant-the Fairbanks North Star Borough School
District (the District)-in 2010, as an aide in the Autism
Outreach (AO) program.[3] As an employee of the District, Ms.
Holladay was a member of the Education Support Staff
Association (ESSA), which had negotiated a collective
bargaining agreement (CBA) with the District.[4]
From
September 2011 through April 2013, Ms. Holladay alleges that
she was given less desirable work assignments, was more
closely supervised than her coworkers, and was treated
differently from coworkers during office training
sessions.[5] She adds that she was criticized for
inappropriate work attire, was given “glares, blank
stares, and downgrading looks” from supervisors, was
spoken to in a “demeaning tone, ” and “was
treated as if nothing she said or did was
correct.”[6] During this period, Ms. Holladay received
two “negative evaluations, ” one in March 2012
and the other in April 2012.[7]Susan Nugent (a contractor hired
by the District to assist in running the AO program)
allegedly made negative comments about Ms. Holladay during
meetings to discuss these evaluations.[8]
In 2012
the District restructured by terminating the AO program and
starting up a new program in its place, the Autism Behavior
and Educational Liaison (ABEL) program.[9]In July 2012, as a
result of this restructuring, Ms. Holladay and all of the
other workers in the AO program were laid off.[10] In August
2012, Ms. Holladay applied for but was not hired to a similar
position in the restructured ABEL program.[11] Ms. Holladay
contends that the hiring decisions for ABEL were based on
age, and that she was not hired because she was over 50 years
old. Ms. Holladay then complained of her treatment to school
officials, who found “no
wrongdoing.”[12] In December 2012, while her
administrative complaint was still being evaluated by the
District, Ms. Holladay was rehired to fill a different
position at a different school.[13] Ms. Holladay received a
third negative evaluation in “[l]ate April
2013.”[14]
During
the summer of 2013, Ms. Holladay was notified that she would
be transferred to a different school in the
District.[15] At the beginning of August 2013, the
District offered a week-long training program; Ms. Holladay
did not receive notice of this training and did not
attend.[16] On August 22, 2013, shortly after having
commenced work for that school year, Ms. Holladay met with
her new school's principal to discuss her employee
improvement plan. In this meeting Ms. Holladay became, in her
own words, “exasperated and addled” as she
explained her past history with Ms. Nugent related to the
negative evaluations. At Ms. Holladay's request, she was
excused from work for the remainder of that
day.[17]
The
next day Ms. Holladay was called to a meeting with Traci
Gatewood, another school administrator, who apparently was
concerned about Ms. Holladay's mental health and how it
might impact her interaction with students.[18] Ms. Holladay
did not return to work at the District after the August 23
meeting.[19] She asked to take leave under the Family
and Medical Leave Act[20] (FMLA) and sought accommodations for
her disability pursuant to the ADA; these requests were not
immediately granted.[21] Although Ms. Holladay did not return to
work after August 23, the record does not reveal whether she
was in a paid or unpaid status. In October 2013, Ms.
Holladay's doctor indicated that she could return to work
under certain conditions.[22]
On
November 4, 2013, Ms. Holladay met with District personnel.
During the course of that meeting, she was terminated from
her position. According to Ms. Holladay's unrebutted
evidence, she “was told [she] was terminated because of
the accommodations.”[23] In a letter to Ms. Holladay
from Ms. Gatewood documenting that November 4 meeting, Ms.
Gatewood explained that “all parties agreed that no
reasonable accommodation could be made to continue [Ms.
Holladay's] employment” in her assigned
position.[24] At that meeting, Ms. Holladay was
offered an opportunity to accept a job in either a janitorial
or part-time clerical position.[25] Ms. Holladay rejected
that offer on November 8, 2013 and resigned from the District
because she “considered the work environment so
hostile” that she could not “accept[]” any
offer.[26]
On
August 29, 2014-294 days after she rejected the alternative
job offers and 298 days after she had been terminated-Ms.
Holladay faxed a letter to the EEOC describing these
events.[27] On or about November 28, 2014, Ms.
Holladay added charges of unlawful retaliation.[28] The EEOC
dismissed Ms. Holladay's complaints and issued a right to
sue letter on February 3, 2015.[29] Ms. Holladay filed this
suit on May 7, 2015, seeking injunctive relief and
damages.[30]
DISCUSSION
I.
Jurisdiction
The
Court has jurisdiction pursuant to 28 U.S.C. § 1331
because Plaintiff's claims arise under federal law. The
Court also has supplemental jurisdiction over the related
state law claims pursuant to 28 U.S.C. § 1367.
II.
Standard for Summary Judgment
Federal
Rule of Civil Procedure 56(a) directs a court to “grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The burden of showing the
absence of a genuine dispute of material fact lies with the
moving party.[31] If the moving party meets this burden,
the non-moving party must present specific factual evidence
demonstrating the existence of a genuine issue of
fact.[32] The non-moving party may not rely on
mere allegations or denials.[33] Rather, that party must
demonstrate that enough evidence supports the alleged factual
dispute to require a finder of fact to make a determination
at trial between the parties' differing versions of the
truth.[34]
When
considering a motion for summary judgment, a court views the
facts in the light most favorable to the non-moving party and
draws “all justifiable inferences” in the
non-moving party's favor.[35] To reach the level of a
genuine dispute, the evidence must be such “that a
reasonable [factfinder] could return a verdict for the
non-moving party.”[36]If the evidence provided by the
non-moving party is “merely colorable” or
“not significantly probative, ” summary judgment
is appropriate.[37]
III.
Analysis
Ms.
Holladay's claims fall into four categories. First, she
presents employment-related discrimination claims-her claims
of retaliation, age discrimination, and disability
discrimination fall into this category. Second, she alleges a
claim of defamation under Alaska law. Third, she claims she
was improperly denied benefits under the FMLA. And fourth,
she asserts contract claims based on her employment agreement
with the District. The Court will address each category in
turn.
a.
Employment Discrimination Claims
Because
Ms. Holladay is self-represented, the Court construes her
Complaint liberally. The Court discerns four distinct
employment discrimination-related claims in the Complaint.
First, Ms. Holladay claims that she was retaliated against-in
the form of increased and demeaning supervision and negative
personnel evaluations from 2011 until “late April
2013”-for her participation in a workplace
investigation.[38] Second, Ms. Holladay alleges that in the
summer of 2012 she was not hired into the ABEL program
because of her age.[39] Third, she claims she was subjected to a
hostile work environment on account of her disability during
some period between September 2011 and late April
2013.[40] And fourth, she claims that she was
terminated or forced to resign in November 2013 because of
her disability.[41]
The
District raises two arguments that it contends entitle it to
judgment as a matter of law on each of these claims. First,
the District contends the claims are untimely.[42]Second, the
District contends that each claim fails on the merits.
1.
Timeliness
Title
VII of the Civil Rights Act of 1964 provides that “in a
case of an unlawful employment practice with respect to which
the person aggrieved has initially instituted proceedings
with a State or local agency with authority to grant or seek
relief from such practice or to institute criminal
proceedings with respect thereto upon receiving notice
thereof, such charge shall be filed by or on behalf of the
person aggrieved within three hundred days after the alleged
unlawful employment practice occurred.”[43] The federal
regulation implementing that statutory section provides that
“a charge is sufficient when the Commission receives
from the person making the charge a written statement
sufficiently precise to identify the parties, and to describe
generally the action or practices complained
of.”[44] Once a charge has been filed, it
“may be amended to cure technical defects or omissions,
including failure to verify the charge, or to clarify and
amplify allegations made therein.”[45] And
“[s]uch amendments and amendments alleging additional
acts which constitute unlawful employment practices related
to or growing out of the subject matter of the original
charge will relate back to the date the charge was first
received.”[46] These provisions governing timeliness of
Title VII claims also extend to claims under the ADA and the
ADEA.[47]
Ms.
Holladay asserts that she first filed her complaint with the
EEOC on August 29, 2014, and the District accepts that as the
relevant date for the purposes of its summary judgment
motion.[48] Thus, Ms. Holladay can bring claims only
for actions that occurred on or after November 2,
2013.[49] There are two basic types of employment
claims: hostile environment claims and discrete-action
claims. Hostile environment claims by their nature involve
continuing conduct, and thus under the “continuing
violation” doctrine that applies to hostile environment
claims, conduct prior to the 300-day period may be actionable
if the conduct also extended into the filing
period.[50] But discrete discriminatory acts
“such as termination, failure to promote, denial of
transfer, or refusal to hire”-which comprise many of
Ms. Holladay's claims-“are not actionable if time
barred, even when they are related to acts alleged in timely
filed charges.”[51]
Ms.
Holladay was first laid off in July 2012, and was not
selected for hire into the ABEL program in August 2012. Any
claims related to these discrete acts-including Ms.
Holladay's claim that she was not hired into the ABEL
program because of her age-are well outside the 300-day
period and are time barred. Ms. Holladay also asserts a
retaliation claim, but Ms. Holladay does not assert
that her termination (or resignation) in November 2013 was
itself in retaliation for any involvement in a protected
activity. Rather, her retaliation claim is apparently limited
to Ms. Nugent's conduct-more specifically, Ms.
Nugent's negative evaluations of Ms. Holladay and Ms.
Nugent's increased supervision of Ms. Holladay's
work-up to “late April 2013.”[52] Because all
this conduct took place outside the 300-day limitations
period, the retaliation claim is also time barred.
Ms.
Holladay's filings indicate she is also pursuing a
hostile environment claim based on her treatment while in the
AO program and under the supervision of Ms. Nugent.
Assuming-solely for the purposes of assessing timeliness-that
the alleged conduct constituted a hostile environment claim,
[53]
Ms. Holladay apparently left that environment by August 23,
2013 at the latest, and any such claim therefore is also time
barred.
But Ms.
Holladay's actual termination or resignation in November
2013, and the meeting discussing reasonable accommodations,
were within the 300 day period.[54] According to Ms.
Holladay, she was told that she was terminated “because
of the accommodations” she was seeking under the
ADA.[55] This is an allegation of disability
discrimination that occurred within the 300-day
period.[56]
The
record is somewhat unclear as to whether Ms. Holladay was
“fired” or “resigned” in November
2013. But even assuming that Ms. Holladay resigned, Ms.
Holladay alleges that she did so and that she declined the
alternative job options because the District did not offer
“a solution to remove or even attempt to address the
circumstances which support the hostile work
environment.”[57] “A claim of constructive discharge
. . . has two basic elements. A plaintiff must prove first
that [she] was discriminated against by his employer to the
point where a reasonable person in [her] position would have
felt compelled to resign. . . . [and] [she] must also show
that [she] actually resigned.”[58] Such a claim accrues when
the employee notifies her employer that she intends to
resign.[59] Since Ms. Holladay gave notice on
November 8, 2013, within the 300-dayu limitation period, she
has asserted a timely constructive discharge claim.
In
light of the foregoing, the Court will grant summary judgment
in favor of Defendant as to Ms. Holladay's hostile work
environment claim, retaliation claim, ADEA claim, and any
other claims she intended to assert with regard to the
District's decision not to hire her into the new ABEL
program because those claims are time-barred. The Court will
not grant summary judgment to the District on timeliness
grounds as to Ms. Holladay's claims of wrongful
termination or constructive discharge in November 2013
because the discrete employment actions related to those
claims occurred within the applicable 300-day period.
2.
Merits
The
District argues that, even if timely, each of Ms.
Holladay's discrimination claims fails on the merits. Ms.
Holladay advances two theories supporting timely
discrimination claims[60]: First, she maintains that she was
denied reasonable accommodation and then fired “because
of” her disability; and second, she asserts that she
was constructively discharged because of disability
discrimination “by [her] employer to the point where a
reasonable person in [her] position would have felt compelled
to resign.”[61]
The
District addresses the merits only as to the reasonable
accommodations claim. “The ADA prohibits an employer
from discriminating against a qualified individual with a
disability ‘because of the
disability.'”[62] An ADA claim entails three elements:
(1) that the plaintiff was disabled; (2) that the plaintiff
was a qualified individual; and (3) that the defendant
discriminated against plaintiff “because of the
disability.” “The ADA's definition of
discrimination includes ‘not making reasonable
accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability . . .
.'”[63] The District does not challenge, at this
stage, that Ms. Holladay had a disability.[64] Nor does the
District challenge (or even address) the requirement that Ms.
Holladay be a qualified individual.[65] Rather, the District
focuses on whether it discriminated against Ms. Holladay by
refusing to make reasonable accommodations.
In the
District's view, Ms. Holladay's accommodation claim
fails because “she claimed that in order for her to
continue working, defendant was required to re-open the
various grievances which she had filed and to resolve them in
the manner desired by plaintiff.”[66] But Ms.
Holladay specifically testified that although she
“asked for that to happen, ” she
“didn't ask for it to be an
accommodation.”[67] One accommodation that Ms. Holladay
did seek was that she not be assigned to work with
“profane or deliberately disruptive
students.”[68]
Ms.
Holladay has the burden of showing the existence of a
reasonable accommodation. But “[t]o avoid summary
judgment, ” Ms. Holladay “need only show that an
accommodation seems reasonable on its face, i.e., ordinarily
or in the run of cases.”[69]Ms. Holladay's request that
she not be assigned to profane or deliberately disruptive
students seems reasonable on its face, and the District does
not now suggest otherwise.[70] And yet the District
apparently rejected this request at the November 4, 2013
termination meeting, telling Ms. Holladay in the November 6
letter that she “did not offer any reasonable
accommodations that would allow [her] to do [her]
job.”[71]
Under
the ADA, however, “[a]n employer is not obligated to
provide an employee the accommodation [she] requests or
prefers, the employer need only provide some reasonable
accommodation.”[72] The District asserts that it
“offered several possible accommodations to
plaintiff” but the record reveals only two:
reassignment to a part-time secretarial position or
reassignment to a janitorial position.[73] But
“[i]n general, reassignment should be considered only
when accommodation within the individual's current
position would pose an undue hardship.”[74] The record
contains no evidence suggesting that Ms. Holladay's
proffered accommodation-assignment to a student that was not
“profane or deliberately disruptive”-would
constitute an undue hardship to the District. To the
contrary, the only evidence on this matter is Ms.
Holladay's testimony that it was feasible.[75] The Court
cannot conclude, on this record, that as a matter of law the
District offered a reasonable accommodation or that Ms.
Holladay did not present a reasonable accommodation that the
District could have provided.
The
District “bore an affirmative obligation to engage in
an interactive process, ” and summary judgment is
unavailable unless the undisputed facts show the employer
engaged in that process in good faith.[76] The only
evidence before the Court on this process is the unsworn
letter from the District's human resources director that
asserts, with little elaboration, that “all parties
agreed that no reasonable accommodation could be
made.”[77] The District asserts that an employer is
absolved of its duty to engage if the employee fails to
engage in the process or “terminates” it
“by voluntarily resigning.”[78] But after
setting forth these propositions of law, the District does
not then demonstrate that they apply here. And the record-as
it now stands-does not support their application: Ms.
Holladay “resigned” on November 8, 2013, but the
District's own records indicate that the interactive
process had concluded at the November 4, 2013
meeting.[79] And because the current record as to
that meeting is so sparse, the Court cannot conclude as a
matter of law that the interactive process was undertaken in
good faith.
The
Court will therefore deny summary judgment as to Ms.
Holladay's ADA accommodations claim and the ADA
constructive discharge claim.[80]
b.
Defamation Claim
Ms.
Holladay claims that she was defamed by certain District
employees.[81] This claim arises from statements made
during evaluation meetings in March and April of
2012.[82] The District contends that these
statements were privileged and not “published, ”
and in any event are time barred.
The
statute of limitations for a defamation claim is two
years.[83] This lawsuit was filed in May 2015-more
than three years after the comments allegedly were made. The
defamation claims are thus time barred and the District is
entitled to summary judgment as to those claims. Accordingly,
the Court does not reach the issues of privilege or
publication.
c.
FMLA Claim
Ms.
Holladay claims that she was denied benefits to which she had
an entitlement under the FMLA.[84] The District suggests that
this claim is time barred for the same reasons as Ms.
Holladay's discrimination claims (that is, that they fall
outside the 300-day limitation period).[85] But FMLA
claims are not subject to the 300-day period that governs
employment discrimination claims. Indeed, under the separate
statutory and regulatory structure of the FMLA, an employee
“has the choice” between filing a complaint with
the Department of Labor (not the EEOC) or filing a
private lawsuit.[86] And, as relevant here, “an action
may be brought under [the FMLA] not later than 2 years after
the date of the last event constituting the alleged violation
for which the action is brought.”[87] Ms. Holladay
sought (and was denied) FMLA leave no earlier than August 23,
2013. She filed this suit May 7, 2015. Accordingly, Ms.
Holladay's FMLA claim is timely.
On the
merits, the District contends that the undisputed facts show
that Ms. Holladay was not qualified for benefits under the
FMLA, and that the District is therefore entitled to summary
judgment on that claim even if it is timely.[88] FMLA benefits
are available only to “eligible
employees.”[89] An employee is eligible if she has been
employed “for at least 12 months” by the employer
and has worked “at least 1250 hours of service with
such employer during the previous 12-month
period.”[90]
Ms.
Holladay sought leave under the FMLA on August 28,
2013.[91] The District asserts that Ms. Holladay
did not work 1, 250 hours in the preceding 12 months (that
is, between August 29, 2012 and August 28, 2013). In support
of this position, the District relies on its letter to the
state agency investigating Ms. Holladay's AFLA claim.
During that period, Ms. Holladay worked from December 19,
2012 until some date in June 2013, and again for a few days
in August, 2013.[92] The District claims that “School
District payroll records reflect that during that 12-month
period, Ms. Holladay worked only 805
hours.”[93]This is indeed short of the 1, 250-hour
requirement for FMLA benefits. But Ms. Holladay contends that
the payroll logs do not account for additional time she
worked each day.[94]She contends that she worked through
lunch and other scheduled breaks and stayed after hours to
accommodate her increased workload from being assigned to
work with two students.[95]
Ms.
Holladay does not quantify this time, but the Court
reasonably infers that she asserts her total hours to exceed
1, 250. The Court is thus faced with Ms. Holladay's sworn
assertion that she worked more than 1, 250 hours and the
District's assertion-in the letter justifying denial of
benefits-that its records reflect she worked less than 1, 250
hours.[96] That calculation appears to be based on
Ms. Holladay's compensation, but “[t]he
determination [of hours worked] is not limited by methods of
recordkeeping, or by compensation agreements that do not
accurately reflect all of the hours an employee has worked
for or been in service to the employer.”[97] Rather,
“[a]ny accurate accounting of actual hours worked under
FLSA's principles may be used.”[98] Given the
dispute as to the number of hours actually worked, the Court
cannot conclude as a matter of law that Ms. Holladay was not
entitled to FMLA benefits and therefore will not grant
summary judgment on this claim.[99]
Moreover,
Ms. Holladay's claim is more nuanced than a
straightforward denial of FMLA benefits. She also asserts
that the District interfered with her right to
pursue those benefits by demanding that she sign a
medical release form before she could obtain FMLA benefits
(if she were eligible).[100] The FMLA expressly
prohibits any employer from interfering or restraining
“the attempt to exercise[] any right” provided
under the FMLA.[101]As neither party has briefed the
substance of this claim, the Court will make no decision as
to its merits at this juncture.
d.
Contractual Claims and Grievance Procedures
The
District classifies Ms. Holladay's remaining claims as
“grievances” subject to the exhaustion of
remedies doctrine.[102] These claims are wide-ranging,
covering, for example “[r]eassigning [Ms. Holladay] to
non essential duties, ” “[i]ncreased
surveillance, ” “[d]enial of training
opportunities, ” and “[f]ailure to investigate
witnesses in complaints/grievances.”[103]
Under
the exhaustion doctrine, “employees must first exhaust
their contractual or administrative remedies, or show that
they are excused from doing so, before they may pursue direct
judicial actions against their
employers.”[104] The District asserts that Ms.
Holladay's grievance claims must be dismissed because Ms.
Holladay did not bring her grievances to binding arbitration,
the third (and final) step in the grievance
process.[105]
At the
outset, the Court notes that the contractual grievance
process applies only to “a claim by a grievant that a
dispute or disagreement exists involving interpretation or
application of the terms of this
Agreement.”[106] The doctrine's application in this
case is therefore limited to Ms. Holladay's contractual
claims arising from the collective bargaining agreement; it
does not apply to Ms. Holladay's claims arising under
federal law or Alaska law.[107]
The
agreement provides that, after completion of the second step
in the grievance process, “the ESSA or the District
may, upon written notification to the other party, submit the
grievance to arbitration.” There is no question that
the disputes between Ms. Holladay and the District did not
advance to arbitration, and no suggestion that any written
notification was given. But Ms. Holladay contends that under
the contract's terms, arbitration was not actually
required and was not actually available to her.[108]
Ms.
Holladay's first argument is premised on the use of the
word “may” in the arbitration provision. The
Court is not persuaded that arbitration was
“optional” in the manner that Ms. Holladay
suggests. The word “may” does not mean that a
party could skip arbitration entirely and immediately seek
judicial relief. Such a reading would abrogate the exhaustion
doctrine, as each step of the grievance process is similarly
optional. Rather, “may” means that a party
“may” pursue the next step in the process if that
party is dissatisfied with the resolution at the previous
step.[109] Under the terms of the contract,
“[a]ny grievance not advanced from one step to the next
within the time limits of that step shall be deemed resolved
by the answer at the previous step.”[110]
Ms.
Holladay's second argument is more persuasive. Ms.
Holladay contends that the phrasing of the third step
suggests that the right to pursue arbitration belongs only to
the District and the ESSA, and not to an individual employee.
Accordingly, Ms. Holladay maintains that she is excused from
failing to seek arbitration because she had no right to do
so. This interpretation of her rights is consistent with the
language of the provision in isolation: “[T]he ESSA or
the District may . . . submit the grievance to
arbitration.”[111] An individual employee, such as Ms.
Holladay, is not explicitly given a right to pursue
arbitration.
This
reading is also buttressed by examining related terms of the
contract. For the first and second step of the process,
different language is used. Thus, “the grievant”
may submit a written grievance to a supervisor, just as
“the grievant” may submit a written grievant to
the Superintendent.[112] And the term “grievant”
is expressly defined by the contract to include “an
employee or group of employees or the ESSA filing a
grievance.”[113] When two provisions of a contract use
different terms, those terms are presumed to have different
meanings; and when a contract uses one specific word it
generally excludes others.[114] The contract gives the
individual employee and the ESSA the right to pursue
relief at steps one and two, but as to the third step
provides that right only to the ESSA (and the District).
Based on the foregoing, the contract does not permit Ms.
Holladay to unilaterally seek arbitration.[115]
But
that Ms. Holladay's reading of the contract is correct
does resolve the matter. In Casey v. City of
Fairbanks, the seminal Alaska Supreme Court case on the
exhaustion doctrine, the employee contended that he was
excused from the exhaustion requirement “when the Union
failed to pursue his grievance, because the Working Agreement
did not contain any measures by which an aggrieved employee
could ensure enforcement of the grievance
procedure.”[116] There, the Alaska Supreme Court did
not conclude that the employee was automatically excused from
exhausting contractual remedies. Rather, the Alaska Supreme
Court held that he was excused only because he had
“made a good faith effort” to fully exhaust his
contractual remedies by raising his concerns with several
union representatives, each of whom told him that the union
could not help him.[117]
The
Alaska Supreme Court reinforced this requirement-that an
employee dependent on a union to represent him in grievance
procedures make a good faith effort to get the union to do
so-in a series of opinions, the last of which is titled
Alaska v. Beard.[118] There, as here, the
governing agreement provided for arbitration as the final
step in the grievance process and reserved the decision to
pursue it to the union.[119] In the first Beard
appeal, the Alaska Supreme Court reversed the trial
court's ruling on summary judgment that Beard, the
employee, had failed to exhaust his administrative remedies.
The Supreme Court noted that “[u]nder the terms of the
CBA grievance procedures, Beard could not pursue his
grievance past the initial steps without the cooperation of
[a union] representative.” Viewing the facts in the
light most favorable to Beard, as the nonmovant, the Court
concluded that “Beard could not comply” with the
grievance procedures “because his union representative
refused to represent him.”[120]
Beard
II clarified that Beard I had not definitively
resolved the issue of exhaustion in Beard's favor, but
had instead turned on the presumption that favored Beard in
his opposition to summary judgment.[121] On the second remand,
the trial court concluded that the union knew of Beard's
grievances but did not pursue them, and that Beard was thus
excused for his failure to exhaust administrative
remedies.[122] But on the third appeal, the Alaska
Supreme Court reversed. It concluded that while the union had
refused to file some grievances, Beard had never asked it to
pursue the constructive discharge grievance at issue and the
union representative had testified that he would have pursued
it if asked.[123] As the Supreme Court explained,
“the union must be afforded a reasonable opportunity to
represent the employee” before the employee's
failure to exhaust contractual remedies can be
excused.[124]
Thus,
in order to avoid the requirements of exhaustion, Ms.
Holladay must have made a good faith effort to have the union
pursue her grievances through arbitration. The District
asserts that “plaintiff fails to provide evidence that
she sought to have either her union or the defendant initiate
arbitration or that either her union or the defendant denied
any such request” and that it is not “aware of
any such evidence.”[125] Ms. Holladay- representing
herself and perhaps unfamiliar with the contours of
Alaska's exhaustion doctrine-has not explicitly addressed
whether, how, or when she asked her union to pursue
arbitration. But her testimony indicates that she “went
to ESSA probably four or five different times . . . to
present my complaint to get the grievance process
started” and that she “was following their
instructions.”[126] She testified that the union knew
she “wanted to file a grievance, and that they were
preparing to file a grievance” but that “then it
didn't happen.”[127] Ms. Holladay was
“starting to push” the union, but “could
not get them to move.”[128] Because she felt she
“was being obstructed [] from filing [her] grievance,
” she met with a lawyer who told her she had to exhaust
her contractual rights first.[129] She also claims that, at
one point, the union informed her that it would no longer
represent her in her grievances.[130]
Given
this record with regard to Ms. Holladay's interactions
with the union, the Court cannot conclude as a matter of law
that Ms. Holladay failed to pursue her contractual remedies
in good faith. Like the Supreme Court in Beard I,
the Court does not conclude that Ms. Holladay is in fact
excused for her failure to seek arbitration. Rather, the
Court concludes only that in light of the current record
before it, and drawing all reasonable inferences in Ms.
Holladay's favor as the nonmovant, the District is not
entitled to summary judgment on the grounds of
nonexhaustion-at least as to grievances for which Ms.
Holladay pursued the first and second step of the grievance
process. As the District has not advanced any other argument
in favor of dismissing any contractual claim Ms. Holladay
intends to assert, summary judgment as to such claims will be
denied.
CONCLUSION
Defendant's
Motion for Summary Judgment at Docket 31 is GRANTED IN PART
and ...