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Bluel v. Cottle

United States District Court, D. Alaska

January 23, 2019

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 Summary Judgment

         Defendants move for summary judgment on plaintiff's remaining claims.[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, the City of Wasilla Mayor; Archie Giddings, the Public Works Director for the City of Wasilla; and the City of Wasilla. Cottle and Giddings are sued in both their official and individual capacities.[3]

         Plaintiff worked as a finance clerk[4] for the City of Wasilla in the Public Works Department from February 2008 until June 2016. During the time period of 2012-2014, plaintiff felt that she was being subjected to a hostile work environment and filed complaints with the EEOC and the Alaska State Commission for Human Rights (ASCHR). Those complaints are not the subject of this lawsuit. Plaintiff avers that “[b]y 2015, . . . I no longer had claims filed with the human rights commission[.]”[5]

         But, plaintiff continued to feel as though she was being subjected to unequal treatment in the workplace. On July 17, 2015, Giddings gave plaintiff and three other Public Works employees a memo that “establish[ed] the priorities of the office.”[6] The memo stated that “[t]he number one priority is customer service and number two is utility billing. All other priorities are secondary.”[7]

         Plaintiff found the staffing memo

very disturbing . . . as I perceived it as de-valuing my contribution and exalting [another employee's] contribution, as the memo stated the goal of the staffing memo was to allow billing to be completed without interruption. . . . I felt it was demeaning and belittling and that was extremely upsetting to me, and incited fear that my duties were going to be permanently reassigned.[8]

         Plaintiff was asked to initial the memo and she did so on July 21, 2015 “under extreme stress.”[9]

         On August 31, 2015, in an email to Lisa Garbo, the Director of Human Resources, plaintiff stated that she “didn't need a belittling memo telling me that my contribution is secondary. I said that if I initialed the memo it meant I accepted being a less valuable employee, and if I didn't initial and perform as it states, I am insubordinate.”[10] Plaintiff reiterated that she found the memo “very upsetting.”[11]

         On December 15, 2015, plaintiff requested that the July 17, 2015 memo be removed from her personnel file.[12] Plaintiff stated that she felt the memo and the policy it implemented was “an effort to retaliate against me for my EEOC sexual harassment complaint by oppressing me, by not allowing me to develop my skills and knowledge and by not giving me credit for my accomplishments.”[13] Plaintiff stated that “[t]he memo policy is hostile and offensive and re-affirms that my Director is completely disengaged and non-attentive to his office staff and office procedures and office environment, or that he is engaged but only in a retaliatory way.”[14]

         On January 6, 2016, plaintiff sent a memo to Garbo that she requested be put in her personnel file along with documents that were attached to the memo.[15] The attached documents included emails to and from Giddings about subjects such as the July 17, 2015 staffing memo, an incident when someone entered plaintiff's cubicle and defaced her personal property, and a “favorable re-hire statement.”[16] The memo also included a list of “inappropriate things [that] have occurred” over the past year, including such as someone putting Vitamin D on her desk as a gift from Santa, her personal property in her cubicle being defaced, another employee yelling at her, being coerced into signing the July 17, 2015 staffing memo, having her duties designated as secondary, having a request to work a flex schedule ignored, and Giddings' alleged violation of an administrative policy.[17]

         Plaintiff avers that Giddings did nothing about her complaints and so, in January 2016, she requested a meeting with Garbo.[18] This meeting took place on January 13, 2016 and was attended by plaintiff, Garbo, and Giddings. Plaintiff avers that during the meeting she “shared with Ms. Garbo that it would be best if Giddings responded proactive[ly] with his managerial style, and that if he did the City would be more productive and I would feel better about the working environment.”[19] Plaintiff avers that she also “shared her ideas and goals for the upcoming year, on ways I thought that Wasilla could improve efficiency and establish a forward thinking community vision.”[20] Plaintiff avers that Giddings “stated that he intended to maintain the ‘status quo.'”[21]

         After the January 13, 2016 meeting, Donna Faeo, a Human Resources employee, discussed with Cottle the potential of referring plaintiff for mental health counseling.[22] Faeo “then made a contact with the Magellan Clinical Manager . . . and explained the situation. She thinks a mandatory referral is warranted at this point.”[23] Faeo prepared a draft of a memo for such a referral and sent it to Giddings for review.[24] Faeo advised Giddings that it was her intention to give plaintiff the referral memo on the morning of January 15, 2016.[25]

         On January 15, 2016, Giddings gave plaintiff the referral memo which read, in pertinent part:

I have worked with you for over seven years' time and have known you to be a capable and dedicated employee. However, in the past several months there have been concerns about your ability to be able to continue your work day either resulting in your need to immediately take leave for the day and or periods of time.[26]
At your request, several meetings have taken place with me and the Human Resources Department and we have exhausted our efforts to be able to offer any assistance to alleviate the concerns you feel are causing you angst within your department and with your co-workers.
The City is mandating you to seek assistance from Magellan Health[, ] our Employee Assistance Program (EAP).[27]

         Plaintiff was given until 4 p.m. that afternoon to schedule an appointment and directed to let Faeo know once she had done so.[28] Plaintiff's initial response to the memo, which was dated January 15, 2016 and written on the face of the memo, was that it was “an attempt for the city to cover it's [sic] behind in any potential legal situation, and a strategy to progressively discipline and discredit me. Angst is created by inequitable treatment and hostility.”[29]

         Nonetheless, plaintiff contacted Magellan and scheduled an appointment for 6:30 p.m. on January 18, 2016.[30] But, then she avers that she “decided that I would not submit to Giddings['] demands, deciding that I would suffer whatever consequences resulted by my decision to object to being label[ed] mentally unstable and being subjected to counseling when I had been fully performing my job duties.”[31]

         On January 18, 2016, plaintiff told Giddings that she was not going to comply with the mandate for counseling and asked him if she would be fired as a result.[32] Giddings told plaintiff he did not think she would be fired and she “said to him that I would just take the hit, whatever they decide[].”[33] Plaintiff noted that her fear was “that I will be set up with some issue, i.e., drugs planted on me or something, so they can fire me. I fear for my personal safety!”[34]

         On January 19, 2016, plaintiff was given an oral warning for failure to comply with the mandate for counseling.[35] Plaintiff was given until 4 p.m. that day to reschedule her appointment.[36] Plaintiff signed the oral warning form, under protest, noting that

[t]his is an attempt to discredit me and label me and slap a diagnosis on me to prevent or prohibit me from saying derogatory statements in a legal setting, or otherwise, and to protect the City in a legal action created by my Director's lack of managerial skills and his disinterest and disconnect from his support staff.[37]

         Plaintiff indicated that she would submit a further response by January 26, 2016.[38] However, later that day, at 1:20 p.m., plaintiff emailed Giddings to say “[p]lease never-mind about a response from me about the mandated counseling. It wouldn't matter anyway because I think everyone's minds are made up already. Please proceed with any action you choose to take regarding further discipline.”[39] But, then, later on that day, Garbo emailed Faeo, Giddings and Cottle to advise them that plaintiff had made contact with Magellan and they were working on scheduling an appointment for her.[40]

         But, the next day, on January 20, 2016, plaintiff emailed Garbo, Faeo, and Giddings to advise them that she was not going “to comply with your mandate for counseling. I don't see the benefit of re-living horrible events and circumstances when I am on the road to recovery[.]”[41] Plaintiff also sent an email response to the oral warning in which she stated that “I sincerely believe that this mandate for counseling is in retaliation for statements I made in the Human Resources office during a brief meeting on January 6, 2016, when I requested documentation be placed in my personnel file.”[42] Plaintiff stated that “[d]uring that meeting, I told Donna Faeo and Lisa Garbo that I would not defend the city in a legal matter, if in fact there occurs a legal matter regarding billing.”[43]

         In response, the City gave plaintiff “another opportunity to schedule an appointment with the available counselor before going down the path to address your refusal to comply with the mandatory referral. . . .”[44] Plaintiff was given until 1:00 p.m. on January 25, 2016 to schedule an appointment with Magellan.[45] Plaintiff responded: “No. Thank you. I'll take the discipline. Whatever that may be.”[46]

         On January 21, 2016, plaintiff submitted a letter of resignation, stating that her last day would be February 12, 2016.[47] Plaintiff also emailed an “Addendum” to her response to the oral warning to Faeo, Garbo, and Giddings.[48] Plaintiff wrote:

I asked Donna why I have never been offered counseling at the City of Wasilla. I don't mean counseling in the sense that I speak to a MFCC or LCSW or other type of professional counselor. I meant why no one at the city has ever asked to speak to me about my behavior. This was a question I had because Donna said that she had hit a “brick wall” with me. It seems curious because she has never asked to speak to me about my behavior at all. I told Archie that no one, ever, has spoken to me about my grievance or my complaint of sexual harassment or retaliation for making a complaint of sexual harassment. No. one has ever asked me my side of it or interviewed me about those situations.[49]

         On January 25, 2016, plaintiff emailed an “Addendum #2” to her response to the oral warning to Faeo, Garbo, and Giddings, in which she wrote:

I have observed many, many times inappropriate behaviors displayed by public works office staff, ie tardies, absences, lengthy personal phone calls, lengthy non-work related conversations, etc.
Yet, it seems to me that no one called anyone to task about these behaviors until very recently, and I suspect my co-workers were not referred to mandatory counseling like I was. This is what makes the mandate to counseling so bizarre to me. I feel singled out and for nefarious purposes.
I have had my duties removed from my purview . . . and have suspected that this removal of duties was a step to abolish my position or otherwise punish me for making a complaint about the Deputy Director of Public Works. I feel also that mandating me to counseling is unfair because there have been numerous instances where my office mates and co-workers have been unavailable for customer service, via absences, tardies, and engaged in long conversations.
I feel and always will feel that this action (mandating me to counseling) is discriminatory and unfair and is a step to removing me from my job. It is not for my benefit whatsoever. Many things have improved in Public Works except for long personal phone calls by one co-worker in particular. Since this co-worker is a long term employee, I feel she is afforded special treatment because she is allowed to be unavailable to address office customers and other employees.[50]

         On January 25, 2016, the City gave plaintiff her first written warning for failure to comply with the mandate for counseling, which plaintiff signed “under protest.”[51] In the warning, plaintiff was given until January 27, 2016 at 5 p.m. to comply with the mandate for counseling.[52]

         On January 26, 2016, Giddings noted that he spoke

with [plaintiff] a few minutes after 8 am this morning, and her question is[:] “what would the city do if she did not show up to work anymore”. I told her I did not know how the city would respond. She sounded upset, she felt she could not face her co-workers as the city has humiliated her and she feels the city has an ulterior motive in mandating counseling. She said the city is leaving her broke and homeless with its actions.[53]

         On January 27, 2016, plaintiff emailed Faeo, Garbo, and Giddings and stated that her

religious beliefs dictate that I decline to attend the mandated counseling because . . . I sincerely believe that the mandate is only given in order for the city to label me as inadequately equipped so that the city can defend itself against wrong-doing and irresponsible behaviors and acts if, and/or when, a legal dispute or litigation occurs against the city.[54]

         On January 28, 2016, plaintiff was given a “notice of suspension without pay for two (2) days from January 28-29, 2016[, ]” which she signed “under protest.”[55] The notice advised plaintiff that she had “until February 1, 2016 at noon to make contact with Magellan Health and schedule an appointment by February 3, 2016.”[56] The notice also advised plaintiff that she had until February 4, 2016 to request a hearing.[57]

         On February 1, 2016, plaintiff requested that she be allowed to withdraw her resignation, stating “I don't really want to quit.”[58] Plaintiff also requested to meet with Cottle and Giddings.[59] In her declaration submitted in opposition to the instant motion, plaintiff avers that she withdrew her resignation because she “discover[ed] violations of my rights under City code[.]”[60]

         On February 2, 2016, plaintiff met with Cottle and Giddings. As a result of that meeting, Cottle revoked plaintiff's two-day suspension without pay, plaintiff was no longer mandated to get counseling, and plaintiff was allowed to withdraw her resignation.[61] After the meeting, plaintiff submitted a list of other actions that she wanted taken, including removal of all disciplinary forms and the letter mandating counseling from her personnel file, to not be disciplined for “nominal errors, ” and “[e]quitable and fair treatment.”[62]

         On February 3, 2016, plaintiff requested a copy of the tape recording of the February 2, 2016 meeting, but she was told by Cottle that there was no tape recording of the meeting.[63]

         Also on February 3, 2016, plaintiff emailed Cottle to “request a pre-disciplinary hearing regarding the suspension-without-pay disciplinary action intended and imposed[.]”[64] In response, Cottle told her that “there would be no pre-disciplinary hearing - that I received a full paycheck and that there was no discipline and that the matter was closed.”[65] Plaintiff noted that Cottle “seemed angry” that she was asking about this.[66] Plaintiff further noted that Giddings told her that “the mandate to counseling and the disciplinary forms would be ‘nullified' by a memo which will be put in my file.”[67] Plaintiff

requested from Archie that I receive a written statement that the mandate and the disciplinary forms are nullified. I told Archie that the entire mandate and disciplinary action were “railroading me” and that I knew exactly why the city was “railroading me.” I told Archie I need to be left alone and that I would take no action unless I am further messed with.[68]

         On February 8, 2016, Giddings gave plaintiff a memo “with a summation” of the actions that had been taken as a result of the February 2, 2016 meeting.[69] In the memo, Giddings noted that “[t]he City made numerous requests in an attempt to have you seek counseling to resolve your work related issues and your refusal to follow these directives resulted in progressive discipline.”[70] Giddings further noted that Cottle had revoked the two-day suspension without pay, that counseling was no longer mandated, and that both he and Cottle had recommended approval of plaintiff's withdrawal of her resignation.[71]

         On May 2, 2016, plaintiff submitted a written request to have the Public Works staffing memo and “the mandate to counseling and associated progressive disciplinary documentation be removed from all City of Wasilla files including my personnel file and supervisory files.”[72] Plaintiff avers that she made this request “to negate in absolute terms the harm that the City had done to my reputation by mandating that I undergo counseling.”[73]

         On May 3, 2016, Giddings responded:

Per Wasilla Municipal Code, § 3.75.030, disciplinary actions will be documented on a discipline action form and will be maintained in the employee's personnel file.
The staffing memo of July 17, 2015 was to notify clerical staff in the department that during billing cycle times the staff would be required to share duties on a rotating basis by answering the phones and providing customer service at the front counter to our clients.
Your request to have these referenced documents removed has been reviewed by me, Human Resources, and the Mayor, and [they] will stay as permanent documentation in your personnel file.[74]

         On May 5, 2016, plaintiff submitted a copy of an “informal grievance” against Faeo that she had prepared in February but never filed and asked that it be put in her personnel file “as a means of documenting the code violation(s) committed by Donna Faeo.”[75] In the “informal grievance”, plaintiff accused Faeo of “‘railroading' [her] in an effort to discredit me and/or terminate my employment and effectively destroy my livelihood and my future.”[76]Plaintiff stated that she believed that the mandate for counseling was “an attempt to minimize Donna Faeo's responsibility in my federal EEOC complaint and any future federal litigation.”[77] Plaintiff further stated that Faeo had “violated my rights and entitlement under the City of Wasilla code by not affording me the opportunity to access the pre-disciplinary hearing process before imposing suspension-without-pay disciplinary action.”[78] Plaintiff stated that she was not given an opportunity for a pre-disciplinary hearing but rather “was suspended-without-pay immediately upon receiving [the] ‘notice of suspension-without-pay.'”[79] Plaintiff also took issue with Faeo's statement that the mandate for counseling was for her benefit, stating that “I was mandated to counseling for objecting that my duties were deemed secondary to the duties of my peers.”[80] Finally, plaintiff accused Faeo of violating city code in “July, 2014, when [she] received a request from the AK Human Rights Commission for a copy of my personnel file.”[81] Plaintiff stated that the city code “states that I was to receive a copy of the AKHRC's request for a copy of my personnel file within 5 days” but that she did not receive a copy until 14 days after the request was received by the City.[82]

         On June 14, 2016, Cottle and Giddings gave plaintiff a “directional memo.”[83] The memo was “about management's expectations concerning professional behavior and communications in the workplace” and was “not disciplinary.”[84] The memo addressed tape recording staff or departmental meetings, personal discussions in a group setting, unplanned leave, using work time to address personal issues, the confidentiality of personnel issues, requests for meetings, and making work calls outside of business hours.[85] Plaintiff avers that this memo “completed the erosion of the work environment that began with the mandated counseling directives back in January 2016.”[86]

         On June 15, 2016, plaintiff submitted a letter of resignation to Giddings, which Giddings accepted on June 16, 2016.[87] Plaintiff's resignation became effective on July 1, 2016.[88] Plaintiff avers that she resigned because

I could no longer tolerate being treated in a hostile and demeaning manner. The harm that I suffered caused by my discipline in January 2016 destroyed the working relationship I had with my co-workers and my supervisors. I had made significant efforts to convince the City to correct the harm it caused me and this did not occur because the mandate for counseling remained in my personnel file and my co-workers still remembered that I had been mandated to attend counseling.[89]

         On June 22, 2016, plaintiff was given her annual performance review[90] even though she had just recently resigned. Plaintiff's overall performance rating was 3.875, which was between meets requirements and exceeds requirements.[91] Giddings wrote that

Toni continues to be a steady and reliable employee and she has a solid knowledge of the City's financial system as it relates to her job duties. Toni continues to improve in her ability to recognize problems with purchase orders, vendor invoicing, and budgeting, being able to bring relevant issues to her supervisor. Toni is also an asset with her ability to perform a variety of non-accounting public works programs. Toni was a real asset recently when we were down to 2 administrative staff (normally 4 staff present) for a month to cover the phones and public counter while continuing to complete her accounting duties.[92]

         Plaintiff commenced this lawsuit on May 19, 2017. In her complaint, plaintiff asserts a single § 1983 cause of action. Plaintiff alleges that she was retaliated against for exercising her First Amendment right of free speech, that she was constructively discharged, and that her due process rights were violated. To the extent that plaintiff pled § 1983 sexual harassment and retaliation claims based solely on the events that occurred in 2012, those claims have been dismissed with prejudice.[93] Plaintiff requests compensatory damages and equitable relief in the form of “returning her to her former position with retroactive pay, return of seniority, and return of loss of benefits[.]”[94]

         Defendants now move for summary judgment on plaintiff's remaining § 1983 free speech, due process, ...


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