Rush v. Alaska Dep't of Health & Soc. Servs.
| Decision Date | 03 June 2019 |
| Docket Number | Case No. 3:16-cv-00233-SLG |
| Parties | SALESIA L. RUSH, Plaintiff, v. STATE OF ALASKA, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant. |
| Court | U.S. District Court — District of Alaska |
Before the Court is Plaintiff Salesia Rush's Motion to Supplement the Record at Docket 62. Defendant State of Alaska, Department of Health and Social Services ("DHSS") opposed this motion at Docket 63, to which Ms. Rush replied at Docket 65. Oral argument was not requested on this motion and was not necessary to the Court's determination. Also pending before the Court is DHSS's Motion for Summary Judgment at Docket 45. Ms. Rush opposed this motion at Docket 51, to which DHSS replied at Docket 55. Oral argument on the summary judgment motion was held on November 2, 2018.
On October 5, 2016, Ms. Rush initiated this action against her former employer, DHSS and several DHSS employees, against whom she alleged severalclaims, including employment discrimination.2 On March 30, 2017, Ms. Rush filed the First Amended Complaint ("FAC"), after which some of her claims and all of the individual defendants were dismissed with prejudice.3 Ms. Rush's three remaining claims against DHSS include race discrimination in the form of disparate treatment, disparate impact, and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII").4
Ms. Rush is an African American woman who first started working for DHSS in 2003. On November 24, 2008, she was promoted to a Criminal Justice Technician I ("CJT 1") in the Background Check Program unit ("BCU").5 On September 1, 2010, Tracey Marshall, an African American woman and Program Coordinator I, became Ms. Rush's direct supervisor.6 Renee Cote and Darlene Hornbeak are Caucasian women who also worked in the BCU with Ms. Rush.7 Patrice Frank, an African American woman, and Mary Ellen Thomas, a Hispanicwoman, also worked in the BCU with Ms. Rush as Criminal Justice Technician IIs.8 Jane Urbanovsky, a Caucasian woman, is the Chief of Certification and Licensing and oversees the BCU.9 Suzan Hartlieb is the Alaska State Employees Association ("ASEA") Business Agent assigned by the union to represent employees at DHSS.10
On December 2, 2009, Ms. Rush filed with the Alaska State Commission for Human Rights ("ASCHR") and cross-filed with the Equal Employment Opportunity Commission ("EEOC") a charge alleging race discrimination, retaliation, and a hostile working environment ("the 2009 Charge").11 On March 3, 2011, ASCHR determined that Ms. Rush's "allegations [were] not supported by substantial evidence" and closed the ASCHR 2009 Charge.12 On April 13, 2011, the EEOC adopted ASCHR's findings and closed the EEOC 2009 Charge. The EEOC issued Ms. Rush a notice that authorized her the right to sue in federal court within 90days of receipt of the notice, on or about July 12, 2011.13 Ms. Rush did not exercise her right to sue before the time for filing expired.
On September 7, 2010, DHSS suspended Ms. Rush without pay for ten days for engaging in "inappropriate communication in the workplace," among other violations.14 Specifically, DHSS determined that Ms. Rush had sent and received numerous emails to and from Ms. Cote and Ms. Hornbeak that "contained snarky remarks" and included "some off color remarks about [ ] supervisors and coworkers."15 On the same day and because of their involvement sending and receiving these emails, Ms. Cote was suspended without pay for five days, and Ms. Hornbeak was suspended without pay for one day.16 On March 21, 2011, Ms. Rush filed with the ASCHR and cross-filed with the EEOC a second charge alleging race discrimination based on the September 7, 2010 suspension and retaliation based on the filing of the 2009 Charge ("the 2011 Charge").17 On April19, 2011, ASCHR closed the 2011 Charge as untimely because it was not filed within ASCHR's 180-day filing period.18 On January 17, 2012, the EEOC dismissed the 2011 Charge, stating that after investigation, it was "unable to conclude that the information obtained establishes violations of the statutes."19 The EEOC issued Ms. Rush a notice authorizing her to bring suit in federal court within 90 days of receipt, on or about April 16, 2012.20 Ms. Rush did not file suit regarding the 2011 Charge allegations before the time for filing had expired.
On March 30, 2012, Ms. Rush overheard Ms. Marshall on a speaker phone with a BCU client.21 The client was telling Ms. Marshall that Ms. Rush had tried to get the client's credit card information.22 Ms. Rush had not asked the client for credit card information; she had not talked to any clients on the phone that day.23 Ms. Thomas had heard Ms. Frank claim her name was Salesia on the phone beforetransferring the call to Ms. Thomas.24 On the same day, Ms. Marshall discussed the matter with Ms. Rush and Ms. Frank together.25 Ms. Frank admitted that she had obtained credit card information from the client that day but denied that she had identified herself as Salesia.26 At that time, only Ms. Marshall and Ms. Frank were permitted to take credit card information from clients on the phone.27 Ms. Marshall "agree[d] to contact the client and clear [Ms. Rush's] name."28
On April 2, 2012, Ms. Marshall, Ms. Frank and Ms. Rush met together to discuss the relationship between Ms. Frank and Ms. Rush.29 During that meeting Ms. Rush said that because of the credit card incident, she believed Ms. Frank was deceitful.30 Ms. Marshall insisted that Ms. Rush should be Ms. Frank's friend.31 After Ms. Frank left the meeting, Ms. Marshall and Ms. Rush continued the discussion; Ms. Rush told Ms. Marshall that Ms. Frank is "going to have to learn to adjust to this office."32 Both Ms. Marshall and Ms. Rush raised their voices loudenough that people outside of the office could hear them.33 Ms. Navarez came into the meeting and asked Ms. Marshall if she had called the client to clear Ms. Rush's name; Ms. Marshall responded that she had not.34
On April 10, 2012, DHSS conducted an investigative interview with Ms. Rush to discuss her "inappropriate communication in the workplace."35 Ms. Rush, Ms. Marshall, Ms. Hartlieb, Ms. Urbanovsky and Anne Knight participated in this meeting.36 When Ms. Knight, a HR Specialist, "just returned" from this meeting, she emailed the following:
Jane [Urbanovsky] and Tracey [Marshall] want to dismiss [Ms. Rush] and Suzan [Hartlieb] wants to ask the employee if she wants to resign. The benefit for the State - for allowing [Ms. Rush] to resign is that I am not sure we have a super great case and she won't be able to grieve the dismissal. Jane is drafting up their justifications for dismissal and hope [sic] to have them to me later today.37
The parties disagree, but Ms. Rush asserts that after the meeting, "Ms. Hartlieb told [Ms. Rush] that [she] could either resign or [she] would be fired at the door thenext day."38 Ms. Rush tendered her resignation later that same day.39
On April 27, 2012, Ms. Rush filed with ASCHR and cross-filed with the EEOC a charge alleging age and race discrimination in connection with the recent incidents in March and April 2012, and retaliation based on Ms. Rush's filing of the discrimination charges in 2009 and 2011 ("the 2012 Charge").40 In her filing, Ms. Rush explained the credit card incident and said that DHSS had "established that [Ms. Rush's] coworker had actually made the call to its client and falsely gave [Ms. Rush's] name."41 The ASCHR investigated the 2012 Charge, and on June 1, 2016, dismissed the case after finding that Ms. Rush's "allegations [were] not supported by substantial evidence."42 On June 30, 2016, Ms. Rush appealed ASCHR's determination to the Alaska Superior Court.43 On September 22, 2016, the Alaska Superior Court granted ASCHR's motion to remand the matter back to the commission for further investigation.44 On October 5, 2016, before ASCHR hadmade any determination on remand regarding the 2012 Charge, Ms. Rush filed the instant federal action alleging race discrimination.45 On December 30, 2016, ASCHR issued a second determination on the 2012 Charge; it concluded that Ms. Rush's "allegations [were] not supported by substantial evidence" and closed the case.46 Ms. Rush did not appeal from that determination; but rather elected to move forward with this federal action instead.47
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331, as Ms. Rush's remaining claims arise under Title VII of the Civil Rights Act of 1964.48
Ms. Rush's motion to supplement seeks leave of the Court to add five documents to the record for purposes of the Motion for Summary Judgment.49 These documents include: (1) the October 14, 2011 Letter of Instruction from Tracey Marshall to Ms. Rush;50 (2) the April 27, 2012 ASCHR Complaint No. J-12-125;51 (3) two lists of DHSS employees including their names, job class description, ethnicity, and sex, dated March 30, 2012 and October 1, 2009;52 (4) April 5, 2012 emails between Anne Knight and Tracey Marshall regarding whether there is a Letter of Instruction in Ms. Rush's personnel file;53 and (5) Ms. Rush's response to DHSS's Interrogatory No. 15, which is a 28-page chart she prepared to summarize discriminatory events that she alleges occurred between April 2009 and April 2012.54
Ms. Rush asserts that she did not attach these materials to her opposition to the summary judgment motion because she did not know she needed to resubmit the documents that she had previously attached to her Motion to Compel and Reply to Opposition to Motion to Compel,55 and because she did not know which arguments DHSS was going to make.56 In opposition, DHSS asserts thatMs. Rush cannot satisfy the requirements of the former local rule then applicable because "this material was...
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