United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 17]
JOHN
W. SEDWICK, UNITED STATES DISTRICT JUDGE.
I.
MOTION PRESENTED
At
docket 17, Defendant Chugachmiut (Chugachmiut or Defendant)
filed a motion for summary judgment as to the claims brought
against it by Plaintiff Xiaofang Montella (Plaintiff).
Plaintiff responded at docket 25. In her response, Plaintiff
opposed summary judgment on the merits and also as premature.
She asked the court to provide her additional time to conduct
discovery pursuant to Rule 56 of the Federal Rules of Civil
Procedure.[1] Defendant replied at docket 29, stating
that it did not oppose the request for additional time to
conduct limited discovery. The court granted Plaintiff's
request for additional time and allowed for supplemental
briefing after discovery had been conducted. Plaintiff filed
her supplemental opposition at docket 46 and docket 61.
Defendant
filed its supplemental reply at docket 62. Oral argument
would not be of assistance to the court.
II.
BACKGROUND
Defendant
is a non-profit tribal consortium that provides, among other
things, health care services throughout the Chugach Region.
It is governed by its member tribes, with each tribe electing
one individual to sit on the board of directors. Chenega IRA
Council of Chenega Bay, Alaska is one of its member tribes.
Plaintiff
is of Chinese national origin and English is her second
language. In May or June of 2014, Plaintiff applied for a
Community Health Aide Trainee position at the Chenega Bay
health clinic, which is operated by Defendant. The position
was a combined one, where the trainee would also serve as a
custodian for the clinic. Lloyd Kompkoff, Chenega IRA
Council's alternate Chugachmiut board member and the Vice
President of Chenega Corporation, participated in
Plaintiff's interview for the position. Plaintiff was
hired and began working in the combined trainee/custodial
position as of June 24, 2014.
As part
of Plaintiff's trainee position, she completed certain
prerequisite courses that were necessary to enroll in the
community health aide certification program with Alaska
Native Tribal Health Consortium (ANTHC). ANTHC informed
Plaintiff's Chugachmiut supervisor, Sue Steward, that
Plaintiff had not been admitted into its January 2015 session
but that she would be considered for the October 2015
session. Plaintiff continued in her position as a trainee and
custodian at the Chenega Bay clinic.
In May
2015, the Executive Director of the Chenega IRA Council,
Shelly Wade, contacted Steward to inform her that Chenega IRA
Council community members had expressed concern over
Plaintiff's English language communication skills.
Steward responded that Plaintiff was meeting all requirements
and expectations in her position as a community health aide
trainee. Wade continued to correspond with Chugachmiut
management and employees about Plaintiff's language
proficiency and the hiring process for Chenega Bay's
clinic throughout the summer of 2015.
During
this time, the Chenega Corporation had an ongoing road access
dispute with Plaintiff's fiancé, John Lunetta.
Chenega Corporation believed that Lunetta was trespassing on
its property. Plaintiff and Lunetta were concerned about
Plaintiff's job security. Steward informed Plaintiff and
Lunetta that she would support Plaintiff in her training
position. Lunetta and Chenega Corporation were unable to
resolve their dispute and Lunetta filed a lawsuit in state
court on October 15, 2015.
Plaintiff
was not admitted to ANTHC's October 2015 session for
community health aide certification, but on October 9, 2015,
ANTHC told Steward that Plaintiff would again remain in the
pool of applicants and, while no guarantees could be made,
she would be a “high priority” for the February
2016 training session. Shortly thereafter, on October 19,
2015, Defendant eliminated Plaintiff's trainee position.
On October 20, 2015, Steward informed Plaintiff of the
termination but told her she could stay on at the clinic as a
custodian and as a volunteer emergency responder in Chenega
Bay. The next day, Plaintiff resigned from her position as
custodian.
Plaintiff
subsequently filed for unemployment insurance benefits. In
her appeal of the denial of benefits she stated that she
believes she was terminated in retaliation for submitting an
affidavit against Chenega Corporation in Lunetta's court
case. She later filed a complaint with the Equal Employment
Opportunity Commission alleging discrimination in violation
of Title VII. The complaint was dismissed based on
Defendant's status as a “tribal entity.” This
lawsuit followed. In her complaint, she brings a claim for
discrimination under Title VII, as well as a claim for breach
of the duty of good faith and fair dealing. Defendant moves
for summary judgment.
III.
STANDARD OF REVIEW
Summary
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”[2] The materiality requirement
ensures that “only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary
judgment.”[3]Ultimately, “summary judgment will
not lie if the . . . evidence is such that a reasonable jury
could return a verdict for the nonmoving
party.”[4] However, summary judgment is mandated
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.”[5]
The
moving party has the burden of showing that there is no
genuine dispute as to any material fact.[6] Where the
nonmoving party will bear the burden of proof at trial on a
dispositive issue, the moving party need not present evidence
to show that summary judgment is warranted; it need only
point out the lack of any genuine dispute as to material
fact.[7] Once the moving party has met this burden,
the nonmoving party must set forth evidence of specific facts
showing the existence of a genuine issue for
trial.[8]All evidence presented by the non-movant
must be believed for purposes of summary judgment and all
justifiable inferences must be drawn in favor of the
non-movant.[9]However, the non-moving party may not rest
upon mere allegations or denials, but must show that there is
sufficient evidence supporting the claimed factual dispute to
require a fact-finder to resolve the parties' differing
versions of the truth at trial.[10]
IV.
DISCUSSION
A.
Title VII
Defendant
argues that Plaintiff cannot maintain her discrimination
claim as a matter of law because Defendant is not subject to
employment discrimination claims under Title VII. Indeed,
Indian tribes are exempt from the definition of employer in
Title VII.[11] The exemption is in furtherance of
tribal sovereign immunity, the purpose of which is “to
promote the ability of Indian tribes to control their own
enterprises.”[12] While Defendant itself is not a tribe,
it is nonetheless exempt under Title VII because it is a
consortium organization controlled by its member tribes and
operated to benefit those tribes.[13]
Plaintiff
does not dispute Defendant's status as a tribal entity
but rather argues that Defendant waived its immunity under
Title VII. She relies on the fact that Defendant declares
itself to be an “equal opportunity employer” on
its website and makes a similar representation on its
employment applications:
[Chugachmiut provides] equal access to . . . employment . . .
without regard to race, color, national origin, religion,
sex, gender identity (including gender expression), sexual
orientation, disability, age, marital status, family/parental
status, income derived from a public assistance program,
political beliefs, veteran status, or any other status or
classification protected by applicable state or federal
law.[14]
While a
tribe may waive immunity to suit, the court cannot imply such
a waiver. It must be unequivocally expressed.[15] There is a
strong presumption against waiver of tribal sovereign
immunity.[16] In Allen v. Gold Country
Casino, the Ninth Circuit held that the tribal casino
did not unequivocally waive its immunity when it stated in
its employment application that employees could be terminated
“for any reason consistent with applicable state or
federal law” or when it stated in its employee
orientation handbook that it practices equal opportunity
employment and does not discriminate based on federally
protected categories.[17] The court concluded that such
statements only imply a willingness to submit to lawsuits and
were not clearly expressed waivers of tribal sovereign
immunity.[18] The court relied on the fact that the
statements “did not mention court enforcement, suing or
being sued, or any other phrase clearly contemplating suits
against the [c]asino.”[19] Likewise, Defendant's
website and application representations relied on by
Plaintiff to support her waiver argument only mention being
an equal opportunity employer; they do not mention being sued
or court enforcement. Any waiver would therefore have to be
implied, which is insufficient for the court to exercise
jurisdiction over Plaintiff's Title VII
claim.[20]
B.
Good Faith and Fair Dealing
Defendant
also moves for summary judgment as to Plaintiff's
contractual breach of good faith and fair dealing claim on
the basis that she has not provided any evidence to show such
a breach. The covenant of good faith and fair dealing is
implied in all at will employment contracts. “This
covenant does not lend itself to precise definition, but it
requires at a minimum that an employer not impair the right
of an employee to receive the benefits of the employment
agreement”[21] and that the “employer treat like
employees alike.”[22] The covenant has both an objective
and subjective component to consider. “An employer can
commit either an objective or subjective
breach of the covenant.”[23] The objective component
focuses on the employer's conduct. It
“‘prohibits the employer from dealing with the
employee in a manner that a reasonable person would regard as
unfair.'”[24] Unfair actions include disparate
employee treatment, terminations on grounds that are
unconstitutional, and firing that violates public
policy.[25]Also, under the objective component,
“an employee may not be terminated in express violation
of the employee's contract terms.”[26] “The
subjective component focuses on the employer's
motives.”[27] It requires a showing that the
employer's decision to terminate the employee was
“actually . . . motivated by an improper or
impermissible objective.”[28] The plaintiff must show
more than just speculation about the motives for the
termination.[29]
Defendant
first argues that Plaintiff was not actually terminated
because the custodial portion of her job duties remained and
she was invited to stay with the health clinic in that
capacity. It therefore argues that her claim for wrongful
termination pursuant to the implied covenant must fail. The
court disagrees with Defendant's assessment. It is
undisputed that the community health aide trainee position
was eliminated, leaving only a partial job position that was
no longer related to health care and did not provide the same
amount of hours. A jury could reasonably conclude that the
elimination of the health care portion of Plaintiff's job
could constitute constructive discharge. That is, taking the
facts in the light ...