Bluel v. Cottle

          ORDER

          H. Russel Holland United States District Judge.

         Motion for Partial Summary Judgment

         Defendants move for partial summary judgment.^[1] This motion is opposed.^[2] Oral argument was not requested and is not deemed necessary.

         Facts

         Plaintiff is Toni C. Bluel. Defendants are Bert L. Cottle, in his official and individual capacity as the City of Wasilla Mayor; Archie Giddings, in his official and individual capacity as the Public Works Director for the City of Wasilla; and the City of Wasilla.^[3]

         Plaintiff began working for the City of Wasilla in 2008 as an Accounting Clerk II. In June 2012, plaintiff filed a grievance, in which she alleged that one of her co-workers “used racially and sexually hostile comments in the work place.”^[4] Plaintiff's grievance was investigated and her co-worker was counseled about using inappropriate language and “strongly warned that this type of behavior could not continue.”^[5]

         Plaintiff appealed her grievance to the Mayor.^[6] Human Resources investigated plaintiff's grievance by interviewing the people plaintiff had identified as having observed or having knowledge of the alleged inappropriate behavior.^[7] On August 10, 2012, Human Resources advised the Mayor that none of the eight witnesses interviewed corroborated plaintiff's allegations and thus “there [was] no evidence to substantiate [plaintiff's] claims of unlawful harassment.”^[8]

         On August 31, 2012, plaintiff filed a charge of discrimination with the EEOC, in which she alleged sexual harassment and retaliation.^[9] On November 30, 2012, the EEOC issued a right to sue letter.^[10] Plaintiff did not file suit after receiving her right to sue letter “because she hoped that the harassment would eventually subside.”^[11]

         Plaintiff alleges, however, that the “harassment did not subside, ” and so, on May 6, 2014, plaintiff filed a complaint of discrimination with the Alaska State Commission of Human Rights (ASCHR).^[12]Plaintiff requested that her complaint also be filed with the EEOC.^[13]

         In her ASCHR complaint, plaintiff alleged that she had been retaliated against after she filed her 2012 grievance.^[14] Plaintiff alleged that the City of Wasilla had

discriminated against her by treating her as disabled, and retaliated against her for engaging in protected activity. [Plaintiff] alleged that in 2012, she filed a grievance accusing respondent's deputy director of subjecting her to sexual advances and offensive comments. [Plaintiff] alleged that since then, respondent has shunned her, treated her in a rude and hostile manner, refused to answer her work-related questions, disparaged her to her cowork-ers, and implied that she is mentally unstable and suggested that she seek professional counseling.^[15]

         On September 18, 2014, ASCHR issued a determination, concluding that its “[i]nvestigation did not show that respondent discriminated against [plaintiff] by treating her as disabled, or retaliated against her for engaging in protected activity.”^[16] On September 17, 2014, ASCHR closed plaintiff's complaint because the “[i]nvestigation did not find substantial evidence to support the allegations in the complaint.”^[17]

         On February 23, 2015, the EEOC adopted ASCHR's findings and closed plaintiff's 2014 EEOC complaint.^[18] The February 23, 2015 EEOC letter was also plaintiff's right to sue letter.^[19]

         On May 22, 2015, plaintiff filed a pro se complaint in this court, alleging Title VII claims of sexual harassment and retaliation.^[20] Plaintiff's pro se complaint was dismissed on July 21, 2015 after plaintiff failed to pay the filing fee.^[21]

         “[I]n December 2015, ” plaintiff “again complained to her supervisors at [the] City of Wasilla concerning unequal treatment.”^[22] Plaintiff alleges that “[s]pecifically, [she] complained about the conduct of her supervisor Archie Giddings, who she believed was retaliating against her and failing to do his job[.]”^[23] Plaintiff further alleges that “[i]n January of 2016, Mr. Giddings retaliate[d] against [her] use of Free Speech, labeling [her] as mentally unstable” and demanding that she “use [the] City of Wasilla's Employee Assistance Program (EAP) to seek counseling with a third party mental health counseling agency.”^[24] Plaintiff alleges that “[o]n multiple occasions during January 2016, Mr. Giddings demanded ... that [she] seek psychological counseling, and when she refused he used progressive [discipline] to force her to comply with his demand.”^[25]

         Plaintiff alleges that on January 28, 2016, Giddings suspended her without pay.^[26]Plaintiff further alleges that “[a]fter appealing her suspension without pay to Mayor Bert Cottle, her pay was eventually returned and her suspension reversed.”^[27] But, she alleges that “Cottle made no effort to remove the progressive disciplinary documentation that had been placed in [her] personnel file....”^[28]

         Plaintiff alleges that

[b]etween February 2016 through June 2016, [she] engaged in a series of internal appeals and discussions with the City of Wasilla, Human Resources, and Mayor Cottle, attempting to correct the hostile work environment created by Archie Giddings, and attempting to correct the harm to her reputation caused by his efforts to label her as mentally unstable.^[29]

         On June 10, 2016, still proceeding pro se, plaintiff filed a motion for reconsideration in Case No. 3:15-cv-0082-RRB, to which she attached a proposed amended complaint.^[30] The proposed amended complaint asserted Title VII claims of sexual harassment and retaliation. Plaintiff's motion for reconsideration was denied but she was told she could “re-file her Complaint as a new matter....”^[31]

         Plaintiff alleges that on June 14, 2016, Cottle told her that she could no “longer request corrections to her personnel file, and that he would not engage in any future meetings with her concerning the hostile work environment that she had been experiencing.”^[32]

         Plaintiff tendered her resignation on June 15, 2016, allegedly because “the hostile environment that she had been experiencing had ...