Miller v. Jewell

Filing 53

ORDER denying 37 Motion for Summary Judgment. Signed by Judge John W. Sedwick on 5/28/18. (GMM, CHAMBERS STAFF)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF ALASKA

7
8
9
10

MARY A. MILLER,

11
12

Plaintiff,
vs.

13
14
15

RYAN ZINKE, Secretary for the
DEPARTMENT OF THE INTERIOR,
Defendant.

16

)
)
)
)
)
)
)
)
)
)
)

1:16-CV-00002 JWS
ORDER AND OPINION
[Re: Motion at docket 37]

17
I. MOTION PRESENTED

18
19
20

At docket 37, Defendant Ryan Zinke, Secretary of the Department of the Interior
(Defendant), moves for summary judgment as to the federal employment discrimination

21
22

lawsuit filed pursuant to 42 U.S.C. § 2000e-16(a) by Plaintiff Mary A. Miller (Miller).

23

Miller opposes the motion at docket 45. Defendant replies at docket 46. Oral argument

24

was not requested.

25

II. BACKGROUND

26
27
28

Miller is a lifelong resident of Sitka, Alaska and is an Alaska Native. In March of
2008 she was hired by the National Park Service (NPS or Agency) to be the

1
2

Superintendent of Sitka National Historical Park (SNHP) in Sitka, Alaska. The position
was graded at GS-13. In October of 2008 and in October of 2009, Miller received

3
4

positive performance reviews, with her supervisors rating her performance as fully

5

successful. In early 2010, however, NPS Alaska Regional Director Sue Masica

6

(Masica) and NPS Alaska Regional Deputy Director Victor Knox (Knox) informed Miller

7

that a management review of SNHP was planned. The Director for the NPS Pacific

8

West Region, Frank Hays, led the review in February of 2010. The review was followed

9
10

by a recommendation that Miller be reassigned from her supervisory position at SNHP

11

to an Alaska Native liaison position in Anchorage. At that time, the position had not yet

12

been created, but it had been discussed as a potential NPS position as early as 2009.

13

In March, shortly after Hays’s review, NPS management finished the liaison job

14
15
16
17
18
19

description, making the classification correct for Miller’s reassignment by editing the
work description so that it would qualify as a Grade GS-13 position.
On April 27, 2010, Knox offered Miller a voluntary reassignment to the new
Alaska Native liaison position, which would be located in Anchorage rather than Sitka.
Miller declined, and Knox then provided Miller with a memorandum directing her

20
21

reassignment. It advised her that she had ten days to consider the reassignment and

22

that if she declined the position “removal procedures will be taken.” Knox later agreed

23

to extend the deadline for Miller to accept her reassignment until May 14, 2010.

24

Miller declined the reassignment on May 14, 2010. On May 19, Knox issued

25
26
27

Miller a notice of proposed removal based on her failure to accept a managementdirected reassignment. Miller responded to the proposal by attempting to negotiate the

28
-2-

1
2

reassignment, but the removal was finalized by Masica on July 26, 2010, with an
effective date of August 6, 2010.

3
4

Miller pursued a mixed-case administrative action to challenge the removal. A

5

mixed-case action is one where a federal employee challenges an adverse employment

6

action that can be reviewed by the Merit Systems Protection Board (MSPB) under the

7

Civil Service Reform Act (CSRA) and also argues that the action was discriminatory.1

8

Under the governing regulations, Miller, as a federal employee, had two options for

9
10

having a mixed-case action reviewed: 1) she could file an EEO mixed-case complaint

11

with the agency, alleging employment discrimination that was “related to or stemming

12

from” a personnel action that can be reviewed by the MSPB or 2) she could skip the

13

agency process and file a mixed-case appeal with the MSPB, alleging that the action

14
15

“was effected, in whole or in part, because of discrimination.”2 Miller opted to file an

16

EEO complaint with the agency presumably because, in addition to challenging her

17

removal, she wanted to challenge other acts of discrimination not related to the removal

18

and therefore not within the MSPB board jurisdiction. As to her removal, an action

19

within the MSPB board’s jurisdiction, she argued that it was based on her refusal to

20
21

accept a discriminatory reassignment. After there was no decision from the agency

22

within 120 days, in accordance with the applicable regulations,3 she opted to forego the

23

agency review of the removal and filed a mixed-case appeal with the MSPB to

24
25
26

1

27

2

28

3

Kloeckner v. Solis, 568 U.S. 41, 44-45 (2012).
Id. at 45; see also 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.154.
5 C.F.R. § 1201.154(b)(2); 29 C.F.R. § 1614.302(d)(1)(i).

-3-

1
2

challenge the propriety of the removal under the CSRA and to allege that the removal
was effected by race, gender, and disability discrimination. Ultimately, the removal was

3
4
5

affirmed at the administrative level.
Miller then filed a complaint in this court as provided for in the applicable statutes

6

and regulations. In her complaint, she does not challenge the MSPB’s decision as to

7

the propriety of her removal under the Civil Service Reform Act, which would have been

8

subject to a deferential review on the administrative record.4 She does, however,

9
10

challenge the MSPB decision as to her assertion that the removal was based on

11

discrimination and seeks a trial de novo on the issue. 5 Specifically, she brings two

12

claims under 42 U.S.C. § 2000e-16(a): (1) Defendant “intentionally and unlawfully

13

removed [her] from her position as SNHP Superintendent because of her gender, in

14
15

violation of Title VII of the Civil Rights Act of 1964" and (2) Defendant “intentionally and

16

unlawfully removed [her] from her position as SNHP Superintendent because of her

17

race, in violation of Title VII of the Civil Rights Act.”6

18
19

Defendant filed this motion for summary judgment. In the motion, Defendant
argues that under Title VII case law, Miller’s claims actually challenge two discrete

20
21

agency actions: the management-directed reassignment and the removal. It asserts

22

that Miller opted to challenge her reassignment and removal with the agency through

23

the EEO complaint process and therefore had to comply with all deadlines set forth in

24
25
26

4

27

5

28

6

Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir. 1993); 5 U.S.C. § 7703(c).
Id.
Doc. 17 at pp. 6-7.

-4-

1
2

the EEOC regulations. It asserts that Miller did not timely pursue informal review of the
first discrete act—the reassignment— with the agency; therefore, Defendant argues

3
4

that any claim relying on discriminatory reassignment is now time-barred in this court.

5

As to Miller’s claim that her removal itself was discriminatory, Defendant argues that

6

Miller has no viable claim because she cannot “bootstrap” her untimely claim regarding

7

her reassignment to her termination. That is, Defendant asserts that the allegedly

8

discriminatory nature of the reassignment cannot form the basis of her claim that her

9
10
11
12
13

removal from NPS service was based on racial discrimination. It also contends she
does not have sufficient evidence of discrimination to withstand summary judgment.
The court notes that both parties only discuss Miller’s claim based on race.
There is nothing in Defendant’s summary judgment motion discussing her gender

14
15

discrimination claim. Indeed, in her response brief, Miller describes her complaint as

16

alleging only that she was intentionally and unlawfully removed from her position with

17

NPS because of her race.7 For this reason, the court concludes that Miller has

18

abandoned her gender discrimination claim and will only address the race-related claim.

19

III. STANDARD OF REVIEW

20
21

Summary judgment is appropriate where “there is no genuine dispute as to any

22

material fact and the movant is entitled to judgment as a matter of law.”8 The

23

materiality requirement ensures that “[o]nly disputes over facts that might affect the

24

outcome of the suit under the governing law will properly preclude the entry of summary

25
26
27

7

28

8

Doc. 45 at p. 7.
Fed. R. Civ. P. 56(a).

-5-

1
2

judgment.”9 Ultimately, “summary judgment will not lie if the . . . evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”10 However, summary

3
4

judgment is mandated “against a party who fails to make a showing sufficient to

5

establish the existence of an element essential to that party’s case, and on which that

6

party will bear the burden of proof at trial.”11

7
8

The moving party has the burden of showing that there is no genuine dispute as
to any material fact.12 Where the nonmoving party will bear the burden of proof at trial

9
10

on a dispositive issue, the moving party need not present evidence to show that

11

summary judgment is warranted; it need only point out the lack of any genuine dispute

12

as to material fact.13 Once the moving party has met this burden, the nonmoving party

13

must set forth evidence of specific facts showing the existence of a genuine issue for

14
15

trial.14 All evidence presented by the non-movant must be believed for purposes of

16

summary judgment and all justifiable inferences must be drawn in favor of the

17

non-movant.15 However, the non-moving party may not rest upon mere allegations or

18

denials but must show that there is sufficient evidence supporting the claimed factual

19
20
21
22

9

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

10

23

Id.

11

24
25

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

12

Id. at 323.

26

13

27

14

28

15

Id. at 323-25.
Anderson, 477 U.S. at 248-49.
Id. at 255.

-6-

1
2

dispute to require a fact-finder to resolve the parties’ differing versions of the truth at
trial.16

3
IV. DISCUSSION

4
5

A. Timeliness

6

Title VII claims brought by federal employees are subject to administrative

7

exhaustion requirements and time limitations.17 The Civil Service Reform Act (CSRA)

8
9

provides the framework for the administrative review of personnel actions taken against

10

federal employees. “If (but only if) the [personnel] action is particularly

11

serious—involving, for example, a removal from employment or a reduction in grade or

12

pay—the affected employee has a right to appeal the agency’s decision to the MSPB.” 18

13

The appeal can simply challenge the propriety of the action under the CSRA, but it can

14
15

also challenge the action as discriminatory in violation of other federal statutes, such as

16

Title VII.19 When an employee challenges a personnel action that is serious enough to

17

fall within the MSPB’s jurisdiction and alleges that the action was related to

18
19
20

discrimination or effected in whole or in part because of discrimination, she has brought
a mixed case.20 Miller’s attempt to challenge her removal for refusal to accept the

21
22
16

23

Id. at 248-49.

17

24
25

Brown v. Gen. Servs. Admin., 425 U.S. 820, 829-33 (1976) (discussing § 717 of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and noting that it proscribes federal
employment discrimination and establishes an administrative and judicial enforcement system).

26

18

27

19

28

20

Kloeckner v. Solis, 568 U.S. 41, 44 (2012).
Id.
See 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.154

-7-

1
2

reassignment has an eight-year procedural history of being administratively reviewed as
a mixed case.

3
4

A federal employee bringing a mixed case has options as to how to have her

5

case reviewed. “She may first file a discrimination complaint with the agency itself,

6

much as an employee challenging a personnel practice not appealable to the MSPB

7

could do.”21 In such a situation, the EEOC’s procedures for challenging discriminatory

8

agency action apply.22 Those procedures are set forth in 29 C.F.R. §§ 1614.101-110

9
10

and include the requirement that the employee engage in pre-complaint processing.23

11

The employee “must initiate contact with a Counselor within 45 days of the date of the

12

matter alleged to be discriminatory or, in the case of personnel action, within 45 days of

13

the effective date of the action.”24 After that, the formal complaint and investigation

14
15

process can begin. If the agency finds no discrimination, the employee may appeal to

16

the MSPB or forego further administrative review and sue the agency for discrimination

17

in district court.25 “Alternatively, the employee may initiate the process by bringing her

18

case directly to the MSPB, forgoing the agency’s own system of evaluating

19

discrimination charges.”26 If the MSPB affirms the action, the employee can seek

20
21
22
21

23

Kloeckner, 568 U.S. at 45.

22

24
25

29 C.F.R. § 1614.302(d).

23

29 C.F.R. § 1614.105(a)(1).

26

24

27

25

28

26

Kloeckner, 568 U.S. at 45.
Id.
Id.

-8-

1
2

additional administrative review with the EEOC or can seek judicial review in district
court.27

3
4

Here, as noted above, Miller initially filed a mixed-case EEO complaint with the

5

Agency rather than a mixed-case appeal with the MSPB. She did so on August 30,

6

2010, and alleged, among other things not relevant here, that her removal from NPS

7

employment, effective August 6, 2010, was based on her refusal to accept a

8

reassignment that was determined by her race. By the time she had filed the EEO

9
10

complaint, she had already gone through the informal counseling option, knowing that

11

her proposed termination had already happened and was being reviewed by upper

12

management. The complaint was processed and investigated. However, no decision

13

was issued within 120 days. Under the applicable regulations, she was therefore

14
15

allowed to switch over to the alternative MSPB mixed case option. 28 In her mixed-case

16

appeal, she challenged the propriety of the removal under the CSRA and alleged that it

17

was based on her failure to accept the discriminatory reassignment. Years later, after a

18

hearing with and decision by an administrative law judge and appeals to the MSPB and

19

the Federal Circuit, Miller’s removal was ultimately upheld as proper.

20
21
22

She then filed the current discrimination lawsuit, challenging as discriminatory
her removal for failure to accept the reassignment.29 Defendant argues that in this de

23
24

27

25

28

26
27
28

Id.
29 C.F.R. § 1614.302(d)(i); 5 C.F.R. § 1201.154(b)(2).

29

To the extent Defendant asserts that Miller is expressly pursuing a stand-alone
challenge to the reassignment and a stand-alone challenge to her removal, the court disagrees.
Her complaint challenges the removal but argues that it was discriminatory because it was
based on her failure to accept a discriminatory reassignment.

-9-

1
2

novo Title VII case the removal and the reassignment are distinct agency actions and
must be reviewed as such. Therefore, Defendant argues that Miller must demonstrate

3
4

timely administrative review of both actions. In support, it relies on National R.R.

5

Passenger Corp. v. Morgan.30 In Morgan, the Supreme Court held that discrete

6

discriminatory acts—such as termination and denial of transfer—are not actionable if

7

time barred, even when they are related to acts alleged in timely filed charges.

8

If the court were to look only at the reassignment, the record supports a finding

9
10

that Miller did not timely pursue administrative review of that action. A reassignment

11

alone is not an agency action that the MSPB can review. Therefore, to challenge the

12

reassignment apart from the removal, Miller would have had to follow the procedures

13

set forth in the EEOC regulations, and, as noted above, those regulations require that a

14
15

federal employee seek informal counseling within 45 days of the effective date of the

16

challenged personnel action. Miller first sought informal counseling on June 29, 2010. 31

17

Therefore, she can not challenge actions that took effect before May 15, 2010. There

18
19

is some question as to when exactly the reassignment took effect, but based on the
record provided, by May 5, 2010, when the new superintendent had started at SNHP,

20
21

Miller’s reassignment from SNHP had taken effect.

22
23
24

30

25

31

26
27
28

536 U.S. 101 (2002).

The court recognizes that Miller appears to dispute the date of first contact and alleges
that the first contact was made June 28, 2010. However, her sworn deposition states that she
met with the counselor on June 29, 2010. That date is confirmed by the administrative record.
Miller points to an email she wrote that says she made contact with the counselor on June 28,
2010, but there is no supporting documentation on the record to contradict her sworn testimony.
In any event, the court finds that the one-day difference is not determinative here.

-10-

1
2

The court, however, does not agree that Morgan requires the court to consider
Miller’s challenge to her removal for failure to accept a discriminatory reassignment as

3
4

untimely because of her failure to challenge the reassignment separately at the

5

administrative level. Unlike the situation in Morgan, Miller was a federal employee and

6

filed her Title VII claim pursuant to 42 U.S.C. § 2000e-16 after an eight-year

7

administrative process that followed the mixed-case procedural regulations. As noted

8

by the Supreme Court, “[t]he CSRA and regulations of the MSPB and [EEOC] set out

9
10

special procedures to govern such a case—different from those used when the

11

employee either challenges a serious personnel action under the CSRA alone or

12

attacks a less serious action as discriminatory.”32 Those special procedures allow a

13

federal employee to challenge a more serious personnel action, like termination, as a

14
15

mixed-case if it is “related to” employment discrimination or “effected, in whole or in

16

part, because of discrimination” or if the challenge “rais[es] issues of prohibited

17

discrimination in connection with a matter otherwise appealable to the [MSPB].” 33 That

18
19

is to say, the regulations allowed Miller to challenge her removal as inextricably linked
to her allegedly discriminatory reassignment. The court is hard-pressed to conclude that

20
21

her challenge to the removal based upon circumstances involving the reassignment,

22

while proper and timely under the regulations, is untimely for purposes of this Title VII

23

action.

24
25
26
27

32

28

33

Kloeckner, 568 U.S. at 44-45.
29 C.F.R. § 1614.302(a)(1), (2); 5 C.F.R. § 1201.154.

-11-

1
2

Defendant acknowledges that Miller’s case was processed as a mixed-case
action, but believes that is of no consequence because even under the mixed case

3
4

regulations, Miller was untimely. It asserts that Miller opted to challenge her mixed-

5

case complaint through the EEO complaint process, not the MSPB appeal process, and

6

therefore had to comply with the deadlines set forth in the federal employee EEOC

7

regulations. Those regulations require informal counseling within 45 days of the

8

effective date of the allegedly discriminatory action. It then argues that the clock started

9
10

running on the effective date of the first discrete act, which was the reassignment, not

11

the removal. As discussed above, she did not contact the counselor within 45 days of

12

the reassignment. However, Defendant provides no authority to suggest that when an

13

employee has a mixed case—that is, one seeking review of a serious agency action

14
15

that raises issues of discrimination—and the discrimination allegation is premised on

16

and inextricably linked to an earlier personnel action, the clock starts to run at the tim e

17

of the first discriminatory action, even if that is action is not reviewable by the MSPB.

18

The removal is the action that triggered the application of the mixed-case regulations. It

19

is the effective date of the removal that governs. Here, the effective date of the removal

20
21
22
23
24

was August 6, 2010, and as of that date Miller had already started the informal
counseling process.
Moreover, the court notes that while Miller initially sought review through the
EEO mixed-case complaint process, she exercised her option to switch over to the

25
26

MSPB mixed-case appeal route when the Agency did not issue a final decision within

27
28
-12-

1
2

120 days. The MSPB then treated her mixed-case appeal as if she had originally filed
with it. There was no question as to her timeliness under the regulations.34

3
4

Further buttressing the court’s conclusion that Miller timely initiated the review

5

process as to her claim of discrimination is the issue of waiver.35 Miller did not raise the

6

issue of waiver in her opposition, but Defendant noted in its reply brief that the Agency

7

did not waive the timeliness issue simply because it accepted and investigated Miller’s

8

complaint, even after eight years of administrative review. Indeed, in Boyd v. United

9
10

States Postal Service,36 the Ninth Circuit held that “[t]he mere receipt and investigation

11

of a complaint does not waive objection to a complainant’s failure to comply with the

12

original filing time limit when the later investigation does not result in an administrative

13

finding of discrimination.”37

14
15

The administrative record in this case is more complicated and does not fit neatly

16

within the confines of Boyd. The agency accepted Miller’s complaint and investigated it.

17

However, it failed to issue a final decision within 120 days, and Miller opted to forego

18

waiting for the decision and instead filed a mixed-case appeal with the MSPB. An

19
20

EEOC administrative judge assigned to conduct a hearing on Miller’s EEO complaint

21
34

22
23
24
25
26

Cobert v. Miller, 800 F.3d 1340, 1343 (9th Cir. 2015) (“Miller timely appealed her
removal to the Board.”).
35

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (noting that
although Title VII requires that plaintiffs timely exhaust administrative remedies, “filing a
timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit
in federal court, but a requirement that, like a statute of limitations, is subject to waiver,
estoppel, and equitable tolling[ ]”).

27

36

28

37

752 F.2d 410 (9th Cir. 1985).
Id. at 414.

-13-

1
2

acknowledged Miller’s MSPB filing and therefore dismissed the EEOC case. 38
However, the agency continued to work on the case and issued a final decision as to

3
4

her complaint on August 24, 2012. 39 Defendant asserts that this decision was simply

5

resolving the other discrimination claims that were not subject to mixed-case review

6

with the MSPB,40 but the decision clearly addresses Miller’s discrimination claim related

7

to the reassignment and removal. It sets forth her three discrimination claims: Claim 1

8

dealt with her reassignment and subsequent removal; Claim 2 challenged other conduct

9
10

unrelated to the removal; Claim 3 involved an allegation of hostile work environment. In

11

the final decision, the Agency acknowledges that Claim 1 makes Miller’s complaint a

12

mixed-case one.41 The decision specifically dismisses claims 2 and 3 as untimely

13

because the events challenged in those claims occurred more than 45 days before

14
15

Miller had begun her informal pre-complaint processing.42 The rest of the thirteen-page

16

decision is devoted to Claim 1. Therefore, this situation falls outside Boyd. The

17

Agency did not merely accept, investigate, and find no discrimination as to the

18

reassignment and removal. Instead, it accepted, investigated, made findings of

19

untimeliness as to the other claims, but accepted and moved forward with the

20
21

reassignment/removal claim. The Agency, by finding the other claims time-barred

22
23

38

24

39

25

Doc. 37-29.

Doc. 37-24. Cf. Fed. R. Civ. P. 56(c)(3) (noting that the court may consider materials in
the record even if not cited by the parties).

26

40

27

41

28

42

Doc. 37 at p. 8 n. 9.
Doc. 37-24 at p. 1 n. 1.
Doc. 37-24 at p. 3.

-14-

1
2

because the challenged events fell outside the 45-day deadline but moving forward with
the reassignment/removal claim, necessarily found that claim timely. The court also

3
4

notes that in its final decision the Agency found that Miller’s “removal is inextricably

5

intertwined with the decision to direct her reassignment.”43 It cannot now argue that the

6

reassignment was a separate event that triggered the time clock on her administrative

7

review apart from the removal. Therefore, even if the court were to conclude that there

8

is a timeliness issue with the administrative review of Miller’s reassignment, Defendant

9
10

has waived reliance on any such argument.

11

B.

12

Apart from the timeliness issue, Defendant argues summary judgment is

13

Discrimination claims

warranted because Miller has failed to present a triable issue of fact as to her

14
15

discrimination claim. In order to survive a motion for summary judgment on a Title VII

16

claim that does not rely on direct evidence of discrimination, a plaintiff must present a

17

prima facie case of discrimination.44 “Establishing a prima facie case . . . creates a

18
19
20
21

presumption that the plaintiff’s employer undertook the challenged employment action
because of the plaintiff’s race.”45 To meet the prima facie requirement, the plaintiff must
demonstrate that (1) she belongs to a protected class; (2) she was qualified for her

22

position; 3) she was subject to an adverse employment action; and 4) similarly situated

23

individuals were treated more favorably, or other circumstances surrounding the

24
25
26

43

27

44

28

45

Doc. 37-24 at p. 10.
Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002).
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006).

-15-

1
2

adverse employment action give rise to an inference of discrimination.46 Defendant
asserts that Miller has not presented evidence to demonstrate the fourth element. Part

3
4

of Defendant’s argument is that she cannot bootstrap her discriminatory removal claim

5

to an untimely claim of discriminatory reassignment. As noted above, the court

6

concludes that there is no untimeliness issue here. Moreover, “[t]he burden of

7

establishing a prima facie case of disparate treatment is not onerous. . . . At the

8

summary judgment stage, ‘requisite degree of proof necessary to establish a prima

9
10

facie case . . . is minimal and does not even need to rise to the level of a

11

preponderance of the evidence.’”47 The evidence here, viewed in favor of Miller,

12

provides enough to establish a prima facie case: the circumstances surrounding the

13

creation of the position to fit Miller’s grade level, evidence that she may not have been

14
15

qualified for the position aside from her being Alaska Native; and her prior positive

16

performance reviews shortly before a management review that ended up with a

17

recommendation of reassignment followed quickly by a reassignment from a position of

18

general authority to a position limited to Alaska Native relations.

19

In order to rebut the presumption of discrimination, the burden then shifts to

20
21

Defendant to articulate a legitimate reason for the adverse employment action.48 The

22

parties do not dispute that Defendant has put forth a legitimate reason for Miller’s

23

removal: her failure to accept a management-directed reassignment to a position for

24
25
26
27
28

46

Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).

47

Lyons, 307 F.3d at 1112 (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th
Cir.1994)).
48

Cornwell, 439 F.3d at 1028.

-16-

1
2

which management thought Miller was qualified. Therefore, the presumption of
discrimination drops away and the burden shifts back to Miller to “defeat summary

3
4

judgment by satisfying the usual standard of proof required in civil rights cases under

5

[Rule 56].”49 That is, Miller must show that there is enough evidence in the record from

6

which a reasonable jury could conclude by a preponderance of the evidence that

7

Defendant had discriminatory motives when it removed Miller from NPS service. To do

8

this, Miller must point to evidence that suggests Defendant’s legitimate reason is merely

9
10

pretext for discrimination. Such pretext can be shown with evidence, either direct or

11

circumstantial, that discrimination was the real motivation behind the action, or with

12

evidence that demonstrates the legitimate reason is not believable.50 If relying on

13

circumstantial evidence, that evidence must be substantial and specific.51 However, the

14
15

Ninth Circuit has noted that “[t]here is some question whether that distinction for

16

circumstantial evidence is valid” and cautioned that the “‘specific and substantial’

17

standard ‘is tempered by our observation that a plaintiff’s burden to raise a triable issue

18

of pretext is hardly an onerous one.’” 52 The court must consider the cumulative effect of

19

the evidence.53

20
21
22
23

49

24

50

25

51

26
27
28

Id.
Id.
Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998).

52

France v. Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015) (quoting Earl v. Nielsen Media
Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011)).
53

Noyes v. Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007).

-17-

1
2

There is ample evidence in the record to demonstrate that the stated reason for
Miller’s reassignment and removal does not reflect the full picture. Viewing the

3
4

evidence in favor of Miller, it appears that management did not necessarily want Miller

5

to fill the new Anchorage liaison position, but primarily wanted her removed from the

6

SNHP superintendent position. The question is whether there is evidence in the record

7

from which the jury could conclude that the removal was motivated in part by

8

discrimination. There is evidence to support a finding that Miller was not qualified for

9
10

the Alaskan Native liaison position. That evidence, coupled with the fact that she, as an

11

Alaska Native, was moved from a position of general supervisory authority to a position

12

dealing only with Alaskan Native interactions with NPS supports an inference of

13

discrimination. Alone, such evidence might not be substantial enough to create an

14
15

issue of fact for trial. Miller, however, also alleges that there was anti-native sentiment

16

at SNHP, which the reassignment and removal process effectively sanctioned. In

17

support, she relies on evidence that SNHP employees complained that she had a

18

preference for hiring Alaska Natives and voiced those concerns to James Vaughn, the

19

Associate Regional Director for Administration who was involved in Miller’s

20
21

reassignment and decision to remove.54 Although the hiring data did not support such

22

allegations of preferential hiring,55 a management review of SNHP was nonetheless

23

scheduled shortly thereafter. Vaughn testified that the management review, at least in

24
25
26
27

54

28

55

Doc. 45-7 at pp. 3-4; doc. 45-16 at p. 1; Doc. 45-22 at p. 2.
Doc. 45-7 at p. 4.

-18-

1
2

part, provided an opportunity to “confirm or deny what was going on” in the park. 56
While the review was explained to Miller and announced to employees as simply a way

3
4

to gain insight into the effectiveness of park operations and to assist the park’s

5

management team in moving forward, the findings communicated to Knox after the

6

review focused solely on Miller’s performance and complaints about her management

7

style.57 Many of the complaints noted were not discriminatory, but rather more

8

generally criticized her management style. However, Knox’s notes regarding the

9
10
11
12
13

review’s findings reference complaints about Miller’s preferential hiring, which combined
with other evidence clearly means preferential hiring of Alaska Natives.
There is one additional piece of evidence in the record that relates to
discriminatory motives. The management review team solicited comments by SNHP

14
15

employees. Miller relies on comments made by SNHP employee Hayley Matteon. In

16

her comments, Matteon complained about Miller’s management style in general, but

17

also stated as follows:

18
19
20
21
22

I feel the vision and goals for the park is to give control back to the native
Indians. . . . It is clear that the local tribes are bitter about their history and the
Russians “taking their land[.] . . . [S]ince Mary has been on, more and more
involvement with the local tribes is somewhat giving them their land back.
They have more say about the park than the park employees have. . . . [M]y
recommendation would be a superintendent that does not have such strong
ties with local tribes.58

23
24
25
26

56

27

57

28

58

Id.
Doc. 45-13.
Doc. 45-12 at p. 2.

-19-

1
2

Miller argues that this comment is evidence of the anti-native sentiment at the park that
influenced her removal from SNHP. Defendant argues there is no evidence in the

3
4

record to show that the decision makers shared the biases of Miller’s SNHP

5

subordinates. While remarks by non-decision makers are not direct evidence of

6

pretext, these same remarks can be considered circumstantial evidence of pretext

7

when viewed in light of facts that show the remarks were acted upon or influenced the

8

adverse action.59 As noted above, the record shows that there were complaints made

9
10

to management about Miller’s favoring and soliciting Alaska Natives for jobs. A non-

11

routine management review was scheduled on the heels of these complaints. The

12

management review relied on employee surveys and interviews. The reviewer told

13

Knox about complaints related to Miller’s attempt to get rid of certain staff and her

14
15

possible illegal and preferential hires.60 As a solution to the management issues raised

16

during the review, one recommendation was that Miller be removed from her position as

17

superintendent of SNHP.61 Knox’s notes made during his discussion with the reviewer

18

indicate that staff would be told that their concerns were received and action would be

19

taken.62 The reassignment process began almost immediately thereafter. Knox and

20
21

Masica both cited poor workplace relationships between Miller and her staff as an

22
59

23
24
25

See France, 795 F.3d at 1176 (“[T]o create a genuine dispute of material fact on
pretext, a speaker of discriminatory statements need not be the final decision maker of an
employment decision.”); cf. Poland v. Chertoff, 494 F.3d 1174,1182-83 (9th Cir. 2007) (noting
that bias can be imputed to a decisionmaker when there is evidence that the biased
subordinate influenced or was involved in the decision process).

26

60

27

61

28

62

Doc. 45-13.
Id.
Id.

-20-

1
2

aggravating factor in their removal decision.63 While a close call, the court concludes
that the cumulative effect of Miller’s circumstantial evidence is substantial enough that a

3
4
5
6
7
8

jury could conclude that employees’ biased comments and concerns influenced the
ultimate decision to remove Miller from her post as superintendent.
Defendant argues that the same-actor inference applies here, which would place
a more onerous burden on Miller to show discrimination based on race. Under the
same-actor inference, when the same person both hires and fires a plaintiff, and both

9
10

actions occur within a short period of time, a strong inference arises that there was no

11

discriminatory motive behind the adverse employment action.64 Here, however, the

12

court finds the inference to be inapplicable. Knox was not the sole decisionmaker in

13

either Miller’s hiring or reassignment and removal. The evidence shows that multiple

14
15

levels of management were giving input and involved. Indeed, Masica, who was not

16

involved in Miller’s hiring, was the ultimate decisionmaker. Moreover, the allegations of

17

discrimination are more nuanced here. The evidence relied upon by Miller does not

18

create an inference that Knox harbored animus towards her because of her race, but

19

rather is relied on to show that NPS management wanted her removed to appease anti-

20
21

native sentiments of staff members and to address concerns that Miller was allowing

22

too much Alaska Native influence over management decisions in the park. Also, the

23

period of time between Miller’s date of hire and the decision to transfer her was just shy

24

of two years.

25
26
27

63

28

64

Doc. 37-19 at p. 2; doc. 37-18 at p. 2.
Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996).

-21-

1
2

V. CONCLUSION
Based on the preceding discussion, Defendant’s motion at docket 37 is DENIED.

3
4
5
6

DATED this 28th day of May 2018.

/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-22-