Holladay v. Fairbanks North Star Borough School District

          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 ...