United States District Court, D. Alaska
TONI C. BLUEL, Plaintiff,
v.
BERT L. COTTLE, in his official capacity, as City of Wasilla Mayor; et al., Defendants.
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 ...