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Booth v. North Slope Borough

United States District Court, D. Alaska

July 20, 2018

SELINA BOOTH, Plaintiff,



         Before the Court at Docket 37 is Defendant North Slope Borough's (“the Borough”) Motion for Partial Summary Judgment. Plaintiff Selina Booth opposed at Docket 40. The Borough replied at Docket 47. Oral argument was held on March 16, 2018.[1]


         The facts, viewed in the light most favorable to Ms. Booth for purposes of this summary judgment motion, are as follows:

         Ms. Booth was hired as a Division Manager of Administration for the North Slope Borough Police Department (“the Department”) in 2010.[2] Ms. Booth's position was a classified position subject to termination only “for cause” according to the Borough's personnel code.[3] As Division Manager, Ms. Booth supervised five people and oversaw the front desk, accounting, and records. She reported directly to the Chief of Police.[4] In January 2015, Jonathan Owen began working as Chief of Police for the Department.[5]Within a few days of his arrival, Chief Owen determined that he did not need an administrative division manager.[6] At the same time, Chief Owen met with the Mayor and proposed a mayoral appointee position be created to serve as the Assistant to the Chief of Police.[7] The Mayor agreed, and Sarah Ellis was hired for the job.[8] Ms. Ellis began in that position in late January or early February 2015.[9]

         On February 4, 2015, Chief Owen placed Ms. Booth on paid “investigative leave” from February 4 to February 18, 2015.[10] Chief Owen testified that he initiated the investigation due to concerns about the way Ms. Booth had been treating employees and her role in not preparing the budget and not paying bills promptly.[11] Chief Owen instructed Ms. Booth not to have any contact with the Department's staff or clients during the investigative leave.[12] Chief Owen extended the leave several times in February and March.[13] On April 2, 2015, Chief Owen informed Ms. Booth that the Department was extending Ms. Booth's investigative leave through April 16, 2015.[14] No. further extension occurred but Ms. Booth did not return to work at that time.

         On April 7, 2015, the Borough contacted Ms. Booth's attorney to schedule an interview with Ms. Booth as part of its investigation.[15] The interview was initially scheduled for April 16, 2015 but it did not occur because Ms. Booth was having health problems. Ms. Booth then took approved FMLA leave from April 22, 2015 to May 11, 2015.[16]

         When Ms. Booth returned to work on May 13, 2015, she learned that Sarah Ellis had moved into Ms. Booth's former office and had taken over a number of Ms. Booth's former duties.[17] Ms. Booth contends her new office was a former storage closet and she was largely prevented from resuming her job duties or accessing files that would be necessary for performing her work.[18] Ms. Booth also states that her co-workers and supervisor ignored her and otherwise made her uncomfortable upon returning to work.[19]

         On June 8, 2015, Ms. Booth received a letter from Chief Owen notifying her that her position had been eliminated as part of a reduction in force (“RIF”).[20] Her final day of work was June 8, 2015.[21] The Borough acknowledges that no other Police Department employees were terminated as a result of the decision to reorganize the Department; two police lieutenant positions were eliminated, but both lieutenants were placed in other positions within the Department.[22] The Borough also acknowledges that no cost savings resulted from the reorganization.[23]

         On August 17, 2015, Ms. Booth filed a complaint in the Superior Court for the State of Alaska, Second Judicial District at Barrow.[24] On September 25, 2015, the Borough filed a Notice of Removal with this Court.[25] On May 23, 2016, Ms. Booth filed her Amended Complaint.[26]

         In her Amended Complaint, Ms. Booth brings claims for wrongful discharge (Count 1), wrongful termination in violation of public policy (Count 2), intentional infliction of emotional distress (Count 3), violations of the Alaska Family Leave Act and the Family Medical Leave Act (Count 4), violations of state and federal disability discrimination laws (Count 5), violations of state and federal age discrimination laws (Count 6), wrongful retaliation (Count 7), and violations of state and federal due process rights (Count 8).[27]Ms. Booth seeks compensatory damages for lost wages, employment benefits, retirement benefits, and emotional distress, as well as costs and attorney's fees and such other relief as the Court deems appropriate.[28]

         On November 30, 2017, the Borough filed the instant motion, in which the Borough seeks summary judgment on Counts 3, 4, 7, and 8. At oral argument on March 16, 2018, the Court granted the Borough's motion as to Count 7, as to the claim for a violation of the Alaska Family Leave Act of Count 4, and as to the reputational aspect of Count 8.[29]


         I. Jurisdiction and Applicable Law

         This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because it is a civil action with certain claims arising under federal law, 29 U.S.C. § 2601 et seq., 42 U.S.C. § 12101 et seq., 29 U.S.C. § 621, et seq., and the Due Process Clause of the Constitution. The Court has supplemental jurisdiction over Ms. Booth's related state law claims.[30]

         The Court applies federal procedural law; Alaska substantive law applies to the state law claims.[31]

         II. Legal Standard

         Federal Rule of Civil Procedure 56(c) directs a court to grant summary judgment if the movant “show[s] that there is no genuine issue as to any material fact and that [the movant] is entitled to a judgment as a matter of law.” 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.[32] To reach the level of a genuine dispute, the evidence must be such “that a reasonable jury could return a verdict for the non-moving party.”[33] If the evidence provided by the non-moving party is “merely colorable” or “not significantly probative, ” summary judgment is appropriate.[34]

         III. Analysis

         The Borough seeks summary judgment on four of Ms. Booth's claims; each is addressed below.

         A. Intentional Infliction of Emotional Distress

         “Ordinarily, a claim under the Alaska Workers' Compensation Act is the exclusive remedy for an employee's injury.”[35] The Borough asserts that this exclusivity provision of the Alaska Workers' Compensation Act bars Ms. Booth's claim for intentional infliction of emotional distress (“IIED”), citing Elliott v. Brown in support.[36] In Elliott, two employees filed suit against their employer for assault and battery after their supervisor shoved one employee and hit the other.[37] The Alaska Supreme Court held that a supervisor is a “third person” pursuant to AS 23.30.265 and that the exclusivity provision precluded the employees from maintaining an intentional tort claim against the employer.[38]

         Ms. Booth responds that “[n]ot all damages claims arising in the workplace are swept up in the ambit of workers compensation, especially when the damages claimed are in a category that the Act does not cover.”[39] In support, Ms. Booth cites VECO v. Rosebrock, a case in which the Alaska Supreme Court held that damages for emotional distress caused by sexual harassment in the workplace are not barred by the exclusivity provision of the Alaska Workers' Compensation Act.[40] In reply, the Borough notes that the plaintiff's claim in VECO arose under AS 18.80.220, a statute that “prohibits racial discrimination in hiring, promotion, compensation, and other terms, conditions, or privileges of employment”; it was not a common law IIED claim, as is the case here.[41]Furthermore, the Court in VECO noted that “the objective of [AS 18.80] was to afford complete relief to parties injured by discrimination.”[42] In the instant case, no such legislative mandate for complete relief exists.

         Nevertheless, the VECO Court expressly “join[ed] the courts of many other states which have held that the exclusive remedy provisions of their workers' compensation laws do not bar intangible injury claims resulting from sexual harassment.”[43] While the instant case did not involve sexual harassment, the rationale behind VECO supports a reading of the Alaska Workers' Compensation Act as not precluding damages for an IIED claim. Because “[t]he Alaska Workers' Compensation Act does not provide compensation for emotional distress which does not result in permanent or partial disability, ” the concern that formed a basis for the statute's exclusivity provision-the possibility of a worker's compensation award and a duplicative damage award-is not present here.[44] Therefore, the Court concludes that the Alaska Supreme Court would likely find that the exclusivity provision does not bar Ms. Booth's IIED claim.[45] Accordingly, the Borough is not entitled to summary judgment on this claim.

         B. Violation of the Family Medical Leave Act[46]

         “The FMLA creates two interrelated substantive rights for employees. First, an employee has the right to take up to twelve weeks of leave for the reasons [enumerated in the statute]. Second, an employee who takes FMLA leave has the right to be restored to his or her original position or to a position equivalent in benefits, pay, and conditions of employment upon return from leave.”[47] An employer violates the FMLA if it considers the taking of FMLA leave as a negative factor in an employment decision, including termination.[48]

         Ms. Booth's Amended Complaint alleges that the Borough violated the FMLA because “[w]hen [Ms.] Booth returned from []FMLA leave in May 2015, the Borough did not allow her to return to the same or an equivalent position” and then terminated her in June 2015.[49] The Borough asserts that “there is no genuine dispute that Owen's decision to eliminate her position occurred before Booth took medical leave.”[50] Therefore, according to the Borough, “the Borough's decision to eliminate [Ms. Booth's] position predated her FML and was necessarily unrelated to her leave.”[51] The Borough also asserts that “Booth's FMLA claim fails because she neither alleges nor suffered economic damages associated with her medical leave.”[52]

         While the Borough maintains it is undisputed that the Borough had already decided to eliminate Ms. Booth's position before she took the FMLA leave, Ms. Booth disagrees. Under Ms. Booth's theory, the decision to implement the RIF without giving Ms. Booth an opportunity to be considered for another position reflected an intention to circumvent the process of for-cause termination. The ambiguous circumstances of Ms. Booth's investigative leave-that was ongoing from February 4, 2015 to April 15, 2015-raise the possibility that Ms. Booth's termination was not strictly the result of a RIF determination made in February 2015, as the Borough contends. Ms. Booth has alleged that she was notified on April 21, 2015 that her investigative leave had ended on April 15, 2015 and that she had been expected to return to work the following day.[53] Ms. Booth then took FMLA leave from April 22, 2015 to May 11, 2015.[54] Ms. Booth was not given notice of the RIF until June 8, 2015, after she had returned to work following the FMLA leave.[55]Drawing all justifiable inferences in Ms. Booth's favor, a reasonable jury could find that Ms. Booth's decision to take FMLA leave was a negative factor in her subsequent termination.[56]

         The Borough also contends that Ms. Booth's FMLA claim must fail because she has not alleged economic damages as required under the statute.[57] But Ms. Booth asserts that the ultimate result of the alleged FMLA violation was the loss of her job-an injury for which Ms. Booth seeks “compensatory damages for lost wages, employment benefits, retirement benefits, and emotional distress in an amount to be demonstrated at trial, exceeding $100, 000.”[58] Accordingly, the Borough's motion for summary judgment is denied as to Ms. Booth's FMLA claim.

         C. Retaliation

         In her Amended Complaint, Ms. Booth asserts that she suffered wrongful retaliation by being “wrongfully terminated because of Chief Owen's history with her husband.”[59] The Borough maintains that Ms. Booth's ‚Äúretaliation claim is based entirely on speculative motives; she cannot show a protected activity or a causal connection between that activity and the Borough's decision to ...

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