Barron v. Alaska Native Tribal Health Consortium

• Decision Date: 02 January 2019
• Docket Number: Case No. 3:18-cv-00118-SLG
• Citation: 373 F.Supp.3d 1232
• Parties: Elena BARRON, Plaintiff, v. ALASKA NATIVE TRIBAL HEALTH CONSORTIUM, Defendant.
• Court: U.S. District Court — District of Alaska

373 F.Supp.3d 1232

Elena BARRON, Plaintiff,

v.ALASKA NATIVE TRIBAL HEALTH CONSORTIUM, Defendant.

Case No. 3:18-cv-00118-SLG

United States District Court, D. Alaska.

Signed January 2, 2019

Isaac D. Zorea, Law Office of Isaac Derek Zorea, Anchorage, AK, for Plaintiff.

Kendri M.M. Cesar, Richard D. Monkman, Sonosky, Chambers, Sachse, Miller & Munson, LLP, Juneau, AK, for Defendant.

ORDER RE MOTION TO DISMISS

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

Before the Court at Docket 9 is Defendant Alaska Native Tribal Health Consortium's ("ANTHC") Motion to Dismiss. Plaintiff Elena Barron opposed at Docket 12. ANTHC replied at Docket 13. Oral argument was not requested and was not necessary to the Court's decision.

BACKGROUND

ANTHC is a tribal organization that provides health care services to Alaska Natives, American Indians, and other eligible individuals pursuant to Titles I and V of the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 5321 – 32, 5381 – 99 ; the Alaska Tribal Health Compact; and a Funding Agreement with the Secretary of Health and Human Services.¹ Ms. Barron is a respiratory therapist formerly employed by ANTHC.² Ms. Barron's Complaint alleges as follows:

Ms. Barron began her employment with ANTHC in November 2016.³ Shortly after beginning work, Ms. Barron heard other employees discussing "HR hires" in a manner that "cast HR hires in a negative light."⁴ Ms. Barron later asked department director Craig Bevercomb if she was considered a "HR hire," and he replied that she was.⁵ Ms. Barron alleges that over the course of the next several weeks, Ms. Barron's supervisor Zachary Malbalay treated Ms. Barron — who is a Native Alaskan — differently than her Caucasian coworkers.⁶ Mr. Malbalay required Ms. Barron to conduct a procedure that a Caucasian coworker was not required to conduct; he also excused a Caucasian employer from an assignment in Pediatrics because the coworker was pregnant, and instead gave the assignment to Ms. Barron — who was also pregnant at the time.⁷

On Friday, December 9, Mr. Malbalay approached Ms. Barron and told her that Mr. Bevercomb had asked him to talk to her. Mr. Malbalay told Ms. Barron that she was in a "unique position" because she was "more likely to have relatives come to [the] hospital because she was Native-Alaskan."⁸ He then "suggested that because [Ms. Barron] was Native-Alaskan she needed to find other employment with one of the other hospitals in Anchorage."⁹ Mr. Malbalay told Ms. Barron that she must decide over the weekend to either quit or meet with Mr. Bevercomb, "presumably to be fired."¹⁰ On Monday, December 12, Ms. Barron spoke with Mr. Bevercomb, who denied telling Mr. Malbalay to speak with her.¹¹ Mr. Bevercomb acknowledged that Mr. Malbalay should not be asking questions about her race, but stated that it was "within Mr. Malbalay's authority to ask her questions" and that Mr. Malbalay was "just uninformed about Alaskan Native culture."¹² Mr. Bevercomb told Ms. Barron that she should continue to work with Mr. Malbalay in spite of the incident, and Ms. Barron initially agreed to do so.¹³ Later that day, however, Ms. Barron alleges there was a "noticeable change in [Mr.] Malbalay's demeanor towards" Ms. Barron, from which she inferred that Mr. Bevercomb had spoken with Ms. Malbalay about the incident.¹⁴ Because of Mr. Malbalay's "cold" and "unfriendly" behavior toward her, Ms. Barron requested that Mr. Malbalay no longer orient her.¹⁵

Ms. Barron spent the remainder of her orientation working with other co-workers, who "stated that she was doing an excellent job."¹⁶ During the orientation, however, Mr. Malbalay "made comments stating that [Ms. Barron] was not working hard."¹⁷ In January 2017, Ms. Barron discovered that her child had died in utero; she was forced to deliver her stillborn child by C-section.¹⁸ Mr. Bevercomb "did not provide support in [Ms. Barron's] request for leave" following this incident.¹⁹ Ms. Barron was ultimately allowed to take some leave time after she appealed to Mr. Bevercomb's supervisors.²⁰

On February 13, 2017, Mr. Malbalay "showed his animosity toward Alaska Natives and their culture" by "mak[ing] a rude, disgusted, facial expression after a co-worker thanked [Ms. Barron] for a jar of fish that she had given her."²¹ Ms. Barron contacted ANTHC's Human Resources concerning this incident, but no action was taken.²²

Sometime after the February 13 incident, Mr. Malbalay received a promotion.²³ Shortly thereafter, Mr. Malbalay wrote an email to hospital administrators "attacking [Ms. Barron] professionally."²⁴ Ms. Barron was required to respond to Mr. Malbalay's allegations.²⁵ On May 4, 2017, Ms. Barron "was required to report to the HR department, and answer questions about her work skills."²⁶ She began to experience medical problems caused by work-related stress.²⁷

"Based on the harassment that she was experiencing at work," Ms. Barron filed with the Anchorage Equal Rights Commission.²⁸ However, ANTHC did not respond to the commission.²⁹ Ms. Barron also contacted ANTHC's Human Resources, but her concerns were not resolved.³⁰ Because ANTHC "would not provide a resolution to [Ms. Barron's] complaints of racial discrimination, she felt she had no option [but] to quit the hostile working environment that had become unbearably stress-filled."³¹ Ms. Barron's employment ended on August 20, 2017.³²

On February 26, 2018, Ms. Barron filed a Complaint in the Superior Court for the State of Alaska, Third Judicial District at Anchorage.³³ On May 21, 2018, ANTHC removed the case to this Court pursuant to 28 U.S.C. § 1441.³⁴ Ms. Barron brings a claim against ANTHC for disparate treatment and retaliation on the basis of race in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981.³⁵

On June 19, 2018, ANTHC filed the instant Motion to Dismiss.³⁶

LEGAL STANDARD

I. Jurisdiction and Applicable Law

The Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this is a civil action with a claim alleged under federal law, 42 U.S.C. § 1981. ANTHC is also a federal contractor and as such the Court has jurisdiction pursuant to 28 U.S.C. § 1442(a).

II. Standard for Dismissal

A defendant may seek dismissal of an action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). When such a motion is made, the plaintiff has the burden of proving jurisdiction.³⁷ If the defendant raises a factual challenge to a court's jurisdiction, as opposed to a facial challenge based solely on the allegations in the complaint, a court may consider matters outside the pleadings in ruling on the motion.³⁸ Here, ANTHC submitted additional materials with its motion to dismiss.³⁹ "[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims."⁴⁰

The issue of tribal sovereign immunity is "quasi jurisdictional" in the sense that it "may be asserted at any time."⁴¹ "Although sovereign immunity is only quasi-jurisdictional in nature, Rule 12(b)(1) is still a proper vehicle for invoking sovereign immunity from suit."⁴² "In the context of a Rule 12(b)(1) motion to dismiss on the basis of tribal sovereign immunity, ‘the party asserting subject matter jurisdiction has the burden of proving its existence,’ i.e. that immunity does not bar the suit."⁴³ A court may " ‘hear evidence regarding jurisdiction’ and ‘resolv[e] factual disputes where necessary’ " when determining such a motion.⁴⁴

DISCUSSION

ANTHC advances three arguments in support of its motion to dismiss. First, it contends that 42 U.S.C. § 1981 does not apply to ANTHC. Second, it contends that tribal sovereign immunity protects ANTHC from suit. Third, it contends that Ms. Barron's claims amount to tort claims, which may only be brought pursuant to the Federal Tort Claims Act ("FTCA").⁴⁵ Given the Court's finding that tribal sovereign immunity applies, the Court does not address the remaining arguments.

1. Tribal sovereign immunity protects ANTHC from suit.

"Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers."⁴⁶ This tribal immunity extends to tribal governing bodies and to tribal agencies or entities which act as an "arm of the tribe."⁴⁷ Tribal sovereign immunity may extend to an organization created by more than one tribe.⁴⁸

ANTHC is a statewide Alaska Native tribal health consortium.⁴⁹ It was established pursuant to Section 325 of Public Law 105-83 with the purpose of "entering into self-determination and self-governance agreements with the Indian Health Service [ ("IHS") ] to operate and manage health services" for the benefit of Alaska Native tribes.⁵⁰ It is also a Co-Signer of the Alaska Tribal Health Compact ("ATHC"), which authorizes tribes and tribal health organizations to operate health and health-related programs.⁵¹ ANTHC has funding agreements with the IHS, and provides "a wide range of medical health, community health and other services" for Alaska Natives that were formerly provided by the IHS's Alaska Office.⁵² ANTHC is controlled by a 15-member Board of Directors comprised of Alaska Native representatives.⁵³ Twelve directors are selected by the twelve regional Alaska Native tribal health consortia, which are "comprised of, and controlled by, the federally-recognized Alaska Native tribes from their respective regions."⁵⁴ One director is appointed by the Metlakatla Indian Community, a federally recognized Alaska Native tribe.⁵⁵ The final two directors are elected by Alaska Native tribes that are not affiliated with a regional health consortium.⁵⁶

The Ninth Circuit has considered whether a particular entity constitutes an "arm of a tribe" that is entitled to tribal sovereign immunity on several occasions. In Allen v. Gold Country Casino , the Ninth Circuit considered whether a casino that was owned and operated by the federally recognized Tyme...