Walker v. Nana WorleyParsons, LLC.

Filing 45

ORDER: denying Motion for Summary Judgment 29 . Signed by Judge Sharon L. Gleason on 01/28/2013. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CAMMIE WALKER,
Plaintiff,
v.
NANA WORLEYPARSONS, LLC,
Defendant.

Case No. 3:11-cv-00089-SLG

ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Cammie Walker initiated this action against her former employer, NANA
WorleyParsons, LLC (NWP) in Alaska Superior Court in April 2011. 1 The Complaint
sought damages for interference with Ms. Walker’s rights under the Family Medical
Leave Act (FMLA), disability discrimination in violation of AS 18.80.220 and the
Americans with Disabilities Act (ADA), interference with Ms. Walker’s rights under the
Employee Retirement Income Security Act (ERISA), violation of AS 23.05.140,
intentional interference with contract, breach of contract and the covenant of good faith
and fair dealing, and wrongful retaliatory discharge in violation of Alaska public policy. 2
NWP removed the action to federal court on April 25, 2011. 3
On June 15, 2012, the parties filed a Stipulation Regarding Partial Dismissal of
Plaintiff’s Claims. 4

Pursuant to that stipulation, Ms. Walker’s Fifth Cause of Action

(Intentional Interference with Contract) was dismissed in its entirety, and Ms. Walker’s
1

Docket 7-1 at 2 (Compl.).

2

Docket 7-1 at 2 (Compl.).

3

Docket 1 (Notice of Removal).

4

Docket 27 (Stipulation).

Sixth Cause of Action (Breach of the Covenant of Good Faith and Fair Dealing) and
Seventh Cause of Action (Retaliatory Discharge) were dismissed to the extent these
claims overlap with Ms. Walker’s ERISA claim. 5
Before the Court is NWP’s Motion for Summary Judgment. 6 Oral argument on
the motion was held on November 8, 2012.
FACTUAL BACKGROUND

Many of the facts are not substantially in dispute. But the parties disagree on at
least one critical issue: what occurred on April 9, 2009.
Cammie Walker began working for NWP’s Predecessor, NANA/Colt Engineering,
LLC, as a Project Controls Specialist in 2003. 7 The offer letter specified that Ms. Walker
could work from a “remote site for 1-2 days per week and 3-4 days in the NANA/Colt
Anchorage office.” 8 Ms. Walker indicated that she initially worked three days in the
office and two days from her home in Willow, Alaska. 9 Ms. Walker’s job description
included the following tasks that involved working with others: (1) “Meets with others to
determine

status

of

various

projects”;

(2)

“Coordinates

information

between

departments . . .”; and (3) “Interfaces with client and team members to explain estimates

5

Docket 28 at 1-2 (Order on Partial Dismissal). The stipulation was silent with respect to the
breach of contract claim in the Sixth Cause of Action, and that claim was not briefed in this
motion.
6

Docket 29 (Mot.).

7

Docket 34-1 at 5 (Walker Dep. at 19-20); Docket 34-5 at 1 (Dep. Ex 2: Offer Letter).

8

Docket 34-5 at 1 (Dep. Ex 2: Offer Letter).

9

Docket 34-1 at 5 (Walker Dep. at 20).

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and techniques used to derive these estimates.” 10 Ms. Walker acknowledged that her
job duties included “face-to-face in-person meetings” and that “face time was an
important . . . part of [her] job.” 11 Ms. Walker was the only employee in her position that
was allowed to work from a remote site and given a flexible work schedule. 12 She has
acknowledged that she had attendance issues beginning in 2007 and continuing into
2008. 13
In August 2004, Ms. Walker was diagnosed with fibromyalgia. 14 She promptly
informed her direct supervisor, Robin Krajnik, about the condition. 15 In October 2004,
Ms. Walker requested information from NWP’s Human Resources (HR) representative,
Wendy Osen, about the company’s disability benefits. 16

Ms. Osen responded with

detailed information about long term and short term disability benefits as well as FMLA
benefits. 17 By 2007, Ms. Walker was spending approximately two days per week in the

10

Docket 34-5 at 9 (Dep. Ex. 12: Job Description).

11

Docket 29-1 at 37, 116-17 (Walker Dep. at 38, 287-88).

12

Docket 29-1 at 23, 111 (Walker Dep. at 20, 279).

13

Docket 29-1 at 38-39, 53-54, 60-68, 71-73 (Walker Dep. at 41-42, 67-68, 76-84, 87-89).

14

Docket 34-2 at 2, 12 (Answers to Def.’s First Discovery Reqs.); Docket 34-5 at 12 (Dep. Ex.
34: 8/17/04 Progress Note from Advanced Pain Centers of Alaska).
15

Docket 34-1 at 5 (Walker Dep. at 22).

16

Docket 34-1 at 5-6 (Walker Dep. at 21-22); Docket 34-1 at 30 (Krajnik Dep. at 31-33).

17

Docket 34-5 at 2-6 (Dep. Ex. 3: emails regarding benefits).

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office and working the rest of her hours from home due primarily to her worsening
physical condition. 18
In October 2008, Ms. Krajnik informed Ms. Walker that she would be required to
work full time in the office beginning in 2009. The parties present different recollections
of the reason for this change. Ms. Walker indicates that Ms. Krajnik told Ms. Walker
that the schedule change was needed “due to changes in the business climate.” 19 Ms.
Krajnik testified that by October 2008, Ms. Walker was having a hard time satisfying her
two-day-a-week in-office schedule. After receiving client complaints about Ms. Walker’s
performance, Ms. Krajnik testified that the schedule change was intended to “help [Ms.
Walker] to be successful and to learn the systems that we had in place at [NWP].” 20
On December 17, 2008, Ms. Krajnik emailed Ms. Walker to confirm that Ms.
Walker would “be in the office full time starting January 5, 2009.”21

Ms. Walker

responded, “I do not want to be in town full time. . . . I would like you to consider
allowing me to work part-time after February . . . [b]ut if that is not possible then I will
have to make 2/27/0[9] my last day.” 22

Ms. Krajnik’s supervisor, Michael Irmen,

acknowledged that this proposal constituted a request for an accommodation. 23 But
Ms. Krajnik testified that Ms. Walker’s proposal to work part-time after February was not
18

Docket 34-1 at 6 (Walker Dep. at 25); Docket 34-2 at 13 (Answers to Def.’s First Discovery
Reqs.).

19

Docket 34-1 at 20 (Walker Dep. at 270-72.

20

Docket 34-1 at 33 (Krajnik Dep. at 79).

21

Docket 34-5 at 14 (Dep. Ex. 37: 12/17/08 emails).

22

Docket 34-5 at 13 (Dep. Ex. 37: 12/17/08 emails).

23

Docket 34-3 at 5, 8 (Irmen Dep. at 35-37, 53).

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satisfactory to NWP given its projects at that time. However, Ms. Krajnik recommended
to her superior that Ms. Walker be permitted to work her current schedule with two days
per week in the office until her last day of February 27, 2009. 24
On January 6, 2009, Ms. Krajnik emailed Ms. Walker to confirm her resignation
effective February 27, 2009. 25 Ms. Walker responded that same day that “I do not want
to lose my job but there is no way I can physically be in the office every day.” In this
email, Ms. Walker indicated that she was gathering information about the Americans
with Disabilities Act and she did not want to commit to resigning her position until after
she met with her doctor. 26
Ms. Krajnik responded by email dated January 12, 2009 that Ms. Walker would
be accorded a “special schedule of four (4) days in the office,” but added “[i]f you are
unable to adhere to this special schedule I will again need to accept your resignation
you submitted on December 17, 2008.” 27 In this email, Ms. Krajnik also shared her
“observations and concerns” with Ms. Walker’s attendance, noting that some weeks Ms.
Walker was “in the office one day a week or not at all” and that she had “not fulfilled the
duties of a Project Controls Specialist.”28 Ms. Krajnik added, “the company has grown
in its client base and complexity of projects and is adopting new project control systems
in line with WorleyParsons requirements,” and that it was “essential for the success of

24

Docket 34-5 at 13 (Dep. Ex. 37: 12/2008 emails).

25

Docket 34-5 at 16 (Dep. Ex. 38: 1/2009 emails).

26

Docket 34-5 at 15 (Dep. Ex. 38: 1/2009 emails).

27

Docket 34-5 at 15 (Dep. Ex. 38: 1/2009 emails).

28

Docket 34-5 at 15 (Dep. Ex. 38: 1/2009 emails).

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the implementation of these systems . . . that [Ms. Walker] be in the office four days a
week.” 29
In an email dated January 19, 2009, Ms. Walker responded “I do not want, or
intend to resign my position.”

Instead, she wrote that she was “requesting an

accommodation to continue working from home 3 days per week for medical reasons
per the American Disabilities Act.” 30
By email dated February 3, 2009, a NWP HR representative sent Ms. Walker
information regarding available FMLA benefits that provided job-protected leave. The
email also included links to information about disability benefits. 31 NWP subsequently
mailed Ms. Walker a hard copy of the FMLA paperwork. Ms. Walker testified that she
received this paperwork, but that she was “still pushing back pretty hard on the disability
suggestions” at that time so she threw the paperwork away. 32
On February 17, 2009, Ms. Krajnik and Mr. Irmen met with Ms. Walker and
presented her with a Notification of Workplace Performance Probation Based on Poor
Work Quality (WPP). 33 The WPP identified several concerns with Ms. Walker’s work,
including “[her] lack of availability to attend scheduled client meetings or project and
missing team meetings.” 34 Ms. Walker acknowledged some performance deficiencies,

29

Docket 34-5 at 15 (Dep. Ex. 38: 1/2009 emails).

30

Docket 34-5 at 17 (Dep. Ex. 39: 1/19/09 email).

31

Docket 34-5 at 36-37 (Dep. Ex. 73: 2/3/09 email).

32

Docket 29-1 at 129-130 (Walker Dep. at 306-07).

33

Docket 29-1 at 119 (Walker Dep. at 293); Docket 29-9 at 3-5 (Ex. LLL: 2/17/09 WPP).

34

Docket 29-9 at 3 (Ex. LLL: 2/17/09 WPP).

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including attendance problems. 35 The WPP contained an Action Plan that required Ms.
Walker to “report to the NANA WorleyParsons’ Anchorage offices to work a minimum of
three days per work week so that [she] may meet in person with the project team, the
client, the project manager and the Project Controls team.” 36
On March 9, 2009, Ms. Krajnik and Mr. Irmen met again with Ms. Walker and
presented a revised WPP with minor changes. 37 The revised WPP Action Plan included
the same requirement that Ms. Walker work in Anchorage a minimum of three days per
week. 38
After the March 9 meeting, Ms. Krajnik arranged for Ms. Walker to meet with HR
to review Ms. Walker’s benefit entitlements, including FMLA and disability leave. 39
On March 24, 2009, Ms. Walker sent Ms. Krajnik an email that indicated that she
was meeting with her doctors and “looking into the option of taking disability” leave. 40
Throughout this time, Ms. Walker testified that she did not change her schedule
to work at the Anchorage office three days per week. 41
On April 9, 2009, Ms. Krajnik and Mr. Irmen met again with Ms. Walker. The
participants have quite different recollections of what occurred at this meeting.

35

Docket 29-1 at 70-71, 105-06, 108-09 (Walker Dep. at 86-87, 232-33, 263-64).

36

Docket 29-9 at 4 (Ex. LLL: 2/17/09 WPP).

37

Docket 29-1 at 120-21 (Walker Dep. at 295-96); Docket 29-9 at 7-9 (Ex. MMM: 3/9/09 WPP).

38

Docket 29-9 at 4 (Ex. LLL: 2/17/09 WPP); Docket 29-9 at 8 (Ex. MMM: 3/9/09 WPP).

39

Docket 34-1 at 23 (Walker Dep. at 298-301).

40

Docket 34-5 at 31 (Dep. Ex. 57: 3/24/09 email).

41

Docket 34-1 at 23 (Walker Dep. at 297-98).

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According to Ms. Walker, she believed the April 9 meeting had been scheduled
to discuss the revised WPP and the response she had made to it. 42 She recalls that at
the beginning of the meeting, Mr. Irmen told Ms. Walker that her performance was no
longer an issue and that the only remaining issue was Ms. Walker’s schedule. He asked
if she could change her schedule to be in the office three days per week. 43 Ms. Walker
responded that she could not do so because she feared losing her job as a result of
calling in sick too many days on that schedule. 44 Mr. Irmen then told Ms. Walker that
she would be terminated unless she decided to go on disability leave. 45 Ms. Walker
explained to Mr. Irmen that she had already seen the doctor and had filled out the
disability paperwork, and that she would choose to go on disability over getting
terminated. 46 According to Ms. Walker, Mr. Irmen replied “great,” and then Mr. Irmen,
Ms. Krajnik, and Ms. Walker decided her FMLA would start at noon the following day. 47
Ms. Krajnik and Ms. Walker then discussed which tasks needed to be reassigned and
which tasks Ms. Walker could complete in the next 24 hours. 48 Then Ms. Walker “was
sent back to [her] office to pick up my FMLA paperwork,” and went to her office at the

42

Docket 34-1 at 25 (Walker Dep. at 314-15).

43

Docket 34-1 at 25 (Walker Dep. at 314).

44

Docket 34-1 at 25 (Walker Dep. at 314-15).

45

Docket 29-1 at 14 (Krajnik Dep. at 91); Docket 34-1 at 25-26 (Walker Dep. at 315, 318);
Docket 34-3 at 9 (Irmen Dep. at 74).

46

Docket 34-1- at 25-26 (Walker Dep. at 315, 318-19).

47

Docket 34-1 at 26 (Walker Dep. at 318-19).

48

Docket 34-1 at 26 (Walker Dep. at 318-19).

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Dimond Center to retrieve it. 49 She then returned to NWP’s downtown office to hand in
her FMLA paperwork to HR approximately two hours later. 50 But when Ms. Walker tried
to submit her paperwork, HR refused to accept it. Ms. Walker was informed that she
had already been terminated and going on FMLA leave or applying for disability benefits
was no longer an option. 51 Ms. Walker indicated she was “stunned.”52 Ms. Walker was
paid for a full day of work on April 9, 2009. 53
NWP’s evidence regarding the events of April 9, 2009, based on the testimony of
Ms. Krajnik, Mr. Irmen, and Ms. Walker, is as follows: Ms. Krajnik and Mr. Irmen met
with Ms. Walker to inform Ms. Walker how important it was for her to be in the office
three days a week. 54 At the meeting, Mr. Irmen told Ms. Walker that if she would not
agree to this requirement, NWP would have no other alternative but to terminate her
employment. 55 Ms. Walker responded that she could not change her schedule. 56 Ms.
Krajnik does not recall Ms. Walker saying at that meeting that the reason she could not
work three days a week in the office was due to her health. 57 Both Mr. Irmen and Ms.

49

Docket 34-1 at 26 (Walker Dep. at 319-20).

50

Docket 34-1 at 26 (Walker Dep. at 320).

51

Docket 34-1 at 26 (Walker Dep. at 321).

52

Docket 34-1 at 26 (Walker Dep. at 321).

53

Docket 29-11 at 4-11 (Exs. CCCC, DDDD: Termination Paperwork).

54

Docket 29-1 at 13-15 (Krajnik Dep. at 90-92).

55

Docket 29-1 at 12-14 (Krajnik Dep. at 89-91); Docket 34-3 at 9 (Irmen Dep. at 74-76).

56

Docket 34-1 at 25 (Walker Dep. at 314-15).

57

Docket 29-1 at 14 (Krajnik Dep. at 91).

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Krajnik testified that when Ms. Walker said she could not change her schedule, Ms.
Walker was informed that she was terminated. 58 Ms. Krajnik testified that “[b]asically
we were all in agreement that Cammie was terminated at that time.” 59 But after that,
Ms. Walker raised the issue of FMLA and disability leave and suggested that she had
already turned in her FMLA paperwork to HR before the meeting. 60 Mr. Irmen testified
that he then told Ms. Walker that the termination was in effect unless Ms. Walker had
already submitted her FMLA paperwork to HR before the meeting. 61 Ms. Walker stated
she needed to go back to her office at the Dimond Center to get some things. 62 Later
that day, Ms. Walker returned to NWP’s downtown office and attempted to give the HR
staff some paperwork. 63 But HR staff explained to Ms. Walker that she had already
been terminated and they could not accept her paperwork. Ms. Walker then signed a
termination form and a termination checklist and left the HR office. 64
The parties also dispute the quality of Ms. Walker’s job performance. Ms. Walker
asserts that she was a highly capable employee, and points to various letters and
accolades from NWP’s clients as well as performance and merit pay increases that she

58

Docket 29-1 at 14-15 (Krajnik Dep. at 91-92); Docket 34-3 at 9-10 (Irmen Dep. at 74-75, 80).

59

Docket 29-1 at 15 (Krajnik Dep. at 92).

60

Docket 34-3 at 9 (Irmen Dep. at 75-76).

61

Docket 34-3 at 10 (Irmen Dep. at 80-81).

62

Docket 29-1 at 15 (Krajnik Dep. at 92).

63

Docket 34-1 at 37 (Krajnik Dep. at 136-37).

64

Docket 29-11 at 5 (Ex. CCCC: Termination Checklist and Form); Docket 29-11 at 16-17 (Ex.
EEEE: Hunsuck Dep. at 52-53); Docket 34-1 at 26 (Walker Dep. at 321).
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received. 65

In contrast, NWP identifies many problems and complaints with Ms.

Walker’s work attendance and performance beginning in approximately 2007. 66 In their
briefing on this motion, each party has selectively focused on those aspects of Ms.
Walker’s job performance and attendance that support its position.
DISCUSSION
I.

Jurisdiction.
This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1367.

II.

Analysis.
A. Summary Judgment Standard.
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” The burden of showing the absence
of a genuine dispute of material fact lies with the moving party. 67 If the moving party
meets this burden, the non-moving party must present specific factual evidence
demonstrating the existence of a genuine issue of fact. 68

65

Docket 30-31 (Opp.) and references therein.

66

Docket 29 at 5-8 (Mot.). See also Docket 29-6 (Ex. RR: 1/10/09 email indicating client is “at
my wits end” and reporting problems); Docket 29-6 (Ex. SS: 1/12/09 email indicating the “client
is very frustrated with us”); Docket 29-6 (Ex. TT: 1/13/09 emails indicating errors in Walker’s
work). NWP also notes that Ms. Walker’s art business was beginning to prosper during early
2009.

67

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

68

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

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When considering a motion for summary judgment, a court is to accept as true all
evidence presented by the non-moving party, and draw “all justifiable inferences” in the
non-moving party’s favor. 69 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.” 70 Thus,
in considering NWP’s Motion for Summary Judgment, this Court is to accept as true the
evidence presented by Ms. Walker with respect to what transpired on April 9, 2009.
In evaluating summary judgment motions on employment discrimination claims,
the Ninth Circuit has “emphasized the importance of zealously guarding an employee’s
rights to a full trial, since discrimination claims are frequently difficult to prove without a
full airing of the evidence and an opportunity to evaluate the credibility of the
witnesses.” 71
B. Claim 1: Violation of FMLA
Ms. Walker alleges that NWP interfered with her rights under the FMLA. That
Act generally provides an eligible employee with 12 weeks of job-protected unpaid leave
to address a serious health condition, and makes it “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise, any right
provided” by the Act. 72 In order to establish a prima facie case of interference, an
employee must show that: “(1) [s]he was eligible for the FMLA’s protections, (2) [her]
employer was covered by the FMLA, (3) [s]he was entitled to leave under the FMLA, (4)
69

Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).

70

Id. at 248.

71

McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004) (internal citations omitted).

72

29 U.S.C. § 2615(a)(1).

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[s]he provided sufficient notice of [her] intent to take leave, and (5) [her] employer
denied [her] FMLA benefits to which [s]he was entitled.”73 “In interference claims, the
employer’s intent is irrelevant to a determination of liability.” 74 To prevail on her claim at
trial, a plaintiff “need only prove by a preponderance of the evidence that her taking of
FMLA-protected leave constituted a negative factor in the decision to terminate her.” 75
Both parties agree that when Ms. Walker was an NWP employee, she was
eligible for the FMLA’s protections. But the parties disagree on whether Ms. Walker
was an NWP employee when she requested FMLA leave. NWP alleges that based on
its version of events, Ms. Walker had already been terminated during the April 9, 2009
meeting before she sought FMLA leave later that same day. 76 As the Ninth Circuit has
held, the right to FMLA leave “obviously cannot be exercised after the termination of an
employment relationship.” 77
Ms. Walker asserts that she was not terminated at the April 9, 2009 meeting, but
rather, she indicated then that she would be requesting FMLA leave and her
supervisors agreed to a plan for that leave to begin the next day. She maintains she
was still an employee when she attempted to submit her FMLA paperwork later that
day, and in fact, she was “still on the NWP payroll through the close of business on April
73

Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011) (citing Burnett v. LFW Inc., 472
F.3d 471, 477 (7th Cir. 2006)).
74

Id. at 778.

75

Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001).

76

Docket 29 at 20 (Mot.).

77

Walls v. Centra Costa Transit Auth., 653 F. 3d 963, 965 (9th Cir. 2011) (citing Smith v. Bell S.
Telecomm., Inc., 273 F. 3d 1303, 1311 (11th Cir. 2001)).
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9, 2009.” 78 Thus, Ms. Walker maintains “the jury reasonably could decide in Walker’s
favor that there was an interference with her FMLA rights.” 79
Ms. Walker’s FMLA claim cannot be resolved by summary judgment. Given the
parties’ conflicting versions of the events of April 9, 2009, there are genuine issues of
material fact. Ms. Walker has submitted sufficient evidence upon which a reasonable
jury could conclude that she was still an employee when she attempted to turn in her
FMLA paperwork, and that her attempt to do so was a negative factor in NWP’s
decision to terminate her at that time. Certainly, NWP has presented a very different
version of the events of April 9, 2009, but it has not demonstrated that it is entitled to
summary judgment if Ms. Walker’s version of the events is accepted as true, which is
the applicable standard to apply for purposes of this motion for summary judgment.
C. Claim 2: Disability Discrimination
Ms. Walker asserts disability discrimination claims under both federal and state
law. The American with Disabilities Act (ADA), 42 U.S.C. § 12112(a), provides “[n]o
covered entity shall discriminate against a qualified individual on the basis of disability in
regard to . . . discharge of employees, . . . and other terms, conditions, and privileges of
employment.” In order to determine if the plaintiff is a “qualified individual” under the
ADA, “first, a court inquires as to the job’s essential functions, after which the plaintiff
must establish that she can perform those functions with or without reasonable

78

Docket 34 at 22 (Opp.).

79

Docket 34 at 21, 24-25 (Opp.).

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accommodations.”80

Reasonable accommodation refers to “[m]odifications or

adjustments to the work environment, or to the manner or circumstances under which
the position held . . . or is customarily performed, that enable an individual with a
disability who is qualified to perform the essential functions of that position[.]”81 “To
determine the appropriate reasonable accommodation, it may be necessary for the
covered entity to initiate an informal, interactive process with the individual with a
disability in need of the accommodation.” 82

An employer is required to make

reasonable accommodations “unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the business of
such covered entity.” 83
State law provides similar rights.

The Alaska Human Rights Act, AS

18.80.220(a)(1), states:
[I]t is unlawful for an employer to refuse employment to a person, or
to bar a person from employment, or to discriminate against a
person in compensation or in a term, condition, or privilege of
employment because of the person’s . . . physical or mental
disability . . . when the reasonable demands of the position do not
require distinction on [that] basis[.]
Ms. Walker alleges that NWP discriminated against her under these laws based
on her fibromyalgia by unreasonably denying her request to continue working from

80

Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1240 (9th Cir. 2012) (citing
Bates v. United Parcel Serv., Inc., 511 F.3d 974, 994 (9th Cir. 2007)).
81

29 C.F.R. § 1630.2(o)(1)(ii).

82

29 C.F.R. § 1630.2(o)(3).

83

42 U.S.C. § 12112(b)(5)(A).

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home three days per week and terminating her employment. 84 She asserts that she
was able to perform the essential functions of her job “and had been doing so for
several years, with the accommodation of working two days per week in the office and
three days per week at home.” 85 Ms. Walker also alleges that NWP refused to engage
in an interactive process with her to identify a reasonable accommodation. 86 And she
maintains that “NWP has made no attempt to show . . . that [her] requested
accommodation would place an undue burden or hardship on the company.” 87
NWP argues that it is entitled to summary judgment on Ms. Walker’s disability
discrimination claims because Ms. “Walker was not a qualified individual with a disability
because she could not perform the essential functions of her job – namely, the
attendance

requirement

of

the

position.” 88

NWP also

contends

that

“the

accommodation [Ms. Walker] requested – to work at home three days per week – was
not reasonable because it was the schedule under which she was failing to meet
performance expectations.” 89 NWP also disputes Ms. Walker’s claim that it failed to
engage in the interactive process, and maintains that it considered and responded to
Ms. Walker’s proposal and offered her a reasonable accommodation. NWP also notes
that Ms. Walker was the only employee in her position allowed to work at home, which

84

Docket 7-1 at 13 (Compl. at ¶ 39).

85

Docket 34 at 9 (Opp.).

86

Docket 34 at 9-11 (Opp.).

87

Docket 34 at 9, 12 (Opp.).

88

Docket 29 at 24-25 (Mot.).

89

Docket 29 at 24 (Mot.).

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implies on-site attendance was an essential function of her position. 90 NWP refutes Ms.
Walker’s claim that it must demonstrate that the particular accommodation she
requested would impose an undue burden.

In this regard, it persuasively cites to

Sharpe v. American Telephone & Telegraph Co. that “the extent of undue hardship on
the employer’s business is at issue only where the employer claims that it is unable to
offer any reasonable accommodation without such hardship.” 91
NWP cites to Samper v. Providence Medical Center 92 in support of its assertion
that an individual that cannot meet the attendance requirement of a position is generally
not a “qualified individual” and that “[e]xcept in the unusual case where an employee
can perform all work-related duties at home, an employee who does not come to work
cannot perform any of his job functions, essential or otherwise.” 93 But in Samper, the
employee worked in a neo-natal intensive care unit in a hospital, which is clearly a very
different work environment than that at issue here. And Ms. Walker notes that unlike
the nurse in Samper, “attendance in the NWP office a certain number of days per week
was never listed in [her] job description, nor was it implied.”94
Clearly, the record demonstrates multiple factual disputes, including the extent to
which office attendance is an essential function of Ms. Walker’s position, whether NWP
90

Docket 38 at 15 (Reply).

91

Docket 38 at 16 (Reply) (quoting Sharpe v. Am. Tel. & Tel. Co., 66 F.3d 1045, 1050 (9th Cir.
1995) (internal citation and quotation marks omitted)).
92

675 F.3d 1233, 1240 (9th Cir. 2012).

93

Docket 29 at 27 (Mot.) (citing Samper, 675 F.3d at 1239 (internal citations and quotations
omitted)).
94

Docket 34 at 15 (Opp.).

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offered a reasonable accommodation for Ms. Walker’s disability, and whether NWP
adequately engaged in the interactive process. 95 Summary judgment on this claim is
accordingly denied.
D. Claim 3: Violation of ERISA
Ms. Walker brings a claim under the Employee Retirement Income Security Act
(ERISA). Section 510 of ERISA, as codified at 29 U.S.C. § 1140, provides:
It shall be unlawful for any person to discharge, fine, suspend,
expel, discipline, or discriminate against a participant or beneficiary
for exercising any right to which he is entitled under the provisions
of an employee benefit plan . . . or for the purpose of interfering
with the attainment of any right to which such participant may
become entitled under the plan[.]
In order to prevail on her ERISA interference claim, Ms. Walker must show that
NWP had “specific intent” to violate ERISA when it terminated her as “no action lies
where the alleged loss of rights is a mere consequence, as opposed to a motivating
factor behind the termination.”96

The Ninth Circuit applies the McDonnell Douglas

burden-shifting analysis to Section 510 ERISA claims when no direct evidence of a
specific intent to interfere with ERISA rights is presented. 97
A plaintiff must first establish a prima facie case of discrimination. If
the plaintiff establishes a prima facie case, the burden then shifts to
the defendant to articulate a legitimate nondiscriminatory reason for
its employment decision. Then, in order to prevail, the plaintiff must
demonstrate that the employer’s alleged reason for the adverse
95

See Barnett v. U.S. Air, 228 F.3d 1105, 1114 (9th Cir. 2000) (en banc), overruled on other
grounds, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2000).
96

Dytrt v. Mountain States Tel. & Tel. Co., 921 F.2d 889, 896 (9th Cir. 1990) (internal citations
omitted).

97

Ritter v. Hughes Aircraft Co., 58 F.3d 454, 457 (9th Cir. 1995) (citing Dister v. Cont’l Group,
Inc., 859 F.2d 1108, 1111-12 (2d Cir. 1988)).

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employment decision is a pretext for another motive which is
discriminatory. 98
In certain situations, the timing of a discharge may create the inference of reprisal. 99
NWP correctly maintains that Ms. Walker has not presented “any direct evidence
that NWP terminated [her] with the specific intent to interfere with any ERISA rights.” 100
It also asserts that “the record is clear that [it] informed Walker that FMLA and disability
leave could be taken concurrently” and that it encouraged Ms. Walker to use her
benefits, conduct it maintains negates Ms. Walker’s claim that it terminated her with the
specific intent of precluding her from obtaining benefits. 101 Relying on its version of the
events of April 9, 2009, NWP contends that Mr. Irmen and Ms. Krajnik arrived at the
meeting on that day “prepared to terminate Walker if she refused to work three days per
week and that decision was entirely unrelated to any benefits discussion.”102 Thus,
NWP asserts that even if Ms. Walker could establish a prima facie case, her ERISA
claim must fail because she was terminated for a legitimate non-ERISA reason when
she refused to accept the schedule change. 103
Ms. Walker acknowledges that NWP had explained her “right to disability
insurance several times for her consideration,” but she asserts it then fired her when

98

Id. at 456 (quoting Wallis v. J.R. Simplot. Co., 26 F.3d 885, 889 (9th Cir. 1994)).

99

Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 881 (9th Cir. 1989).

100

Docket 29 at 31 (Mot.).

101

Docket 29 at 32 (Mot.); Docket 38 at 21-22 (Reply).

102

Docket 29 at 32 (Mot.).

103

Docket 29 at 32 (Mot.).

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she attempted to turn in her FMLA paperwork. 104 Relying on her version of the events
of April 9, 2009, Ms. Walker asserts that “the close proximity of [her] request for FMLA
leave and her termination create a permissible inference” that NWP intended to interfere
with her disability benefits such that its given reasons for termination are pretextual. 105
Under the McDonnell Douglas burden-shifting analysis, Ms. Walker has
presented sufficient evidence that NWP terminated her only when she attempted to
hand in her FMLA paperwork. NWP has alleged a legitimate reason for its action,
maintaining that it terminated Ms. Walker earlier in the day when she refused to work in
the office three days per week. Thus, the burden shifts back to Ms. Walker to prove the
given reason is pretextual. 106 If the trier of fact accepted Ms. Walker’s version of the
events on April 9, 2009, it could find the asserted reason was pretextual. Thus, genuine
issues of material fact preclude summary judgment on this claim.
E. Remaining State Common Law Claims
Counts 4 through 7 are common law claims under state law. Count 4 alleges a
violation of AS 23.05.140 and was not addressed in NWP’s motion.

Count 5 was

dismissed by stipulated order dated June 19, 2012. 107
Count 6 alleges a breach of the covenant of good faith and fair dealing. Under
Alaska law, the covenant of good faith and fair dealing

104

Docket 34 at 27 (Opp.).

105

Docket 34 at 27-28 (Opp.).

106

See Ritter, 58 F.3d at 456-58.

107

Docket 28.

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can be breached objectively or subjectively. The objective prong of
the covenant is breached when an employer fails to act in a manner
that a reasonable person would consider fair, which includes
treating similarly situated employees disparately, terminating
employees on unconstitutional grounds, and terminating employees
in violation of public policy. The subjective prong of the covenant is
breached when an employer is motivated by the goal of depriving
the employee of a benefit of the contract. The purpose of the
covenant is to effectuate the reasonable expectations of the parties,
not to alter or to add terms to the contract. 108
Ms. Walker alleges that NWP breached this covenant by interfering with “[her] rights
under the FMLA, violat[ing] provisions of the ADA and AS 18.80.220, and depriv[ing] her
of benefits due under her disability benefit plans.”109 By stipulated order, the ERISA
component of this cause of action relating to disability benefits was dismissed. 110
Ms. Walker’s seventh cause of action alleges a wrongful retaliatory discharge
claim. She maintains that she was terminated “because of her disability” and “in order
to interfere with her protected rights under the FMLA and ERISA.” 111 Here again, by
stipulated order the ERISA component of this cause of action relating to disability
benefits has been dismissed. 112
Under Alaska law, retaliatory discharge claims can follow different
analytical frameworks depending on the type of evidence
presented. When there is no direct evidence of retaliation [as is the
case here], a pretext framework is used. 113
108

Miller v. Safeway, Inc., 170 P.3d 655, 658-59 (Alaska 2007) (quoting Witt v. State, Dep’t of
Corr., 75 P.3d 1030, 1034 (Alaska 2003)).

109

Docket 7-1 at 19-20 (Compl.).

110

Docket 28; see 29 U.S.C. § 1144 (a) (ERISA preemption clause).

111

Docket 7-1 at 20 (Compl.).

112

Docket 28; see 29 U.S.C. § 1144 (a) (ERISA preemption clause).

113

Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807, 815 (Alaska 2005) (internal
citations and grammatical marks omitted).
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Under the pretext analysis, Ms. Walker must first establish a prima facie case of
retaliation. In order to do so, “a plaintiff must show: (1) that the employee was engaged
in a protected activity; (2) that an adverse employment decision was made; and (3) that
there was a causal connection between the two.” 114 “[C]ausation . . . may be inferred
from the proximity in time between the protected action and the allegedly retaliatory
discharge.” 115 If Ms. Walker establishes a prima facie case of retaliation, the burden
shifts to NWP to articulate a legitimate reason for the termination.

“To satisfy this

burden [of production], the employer need only produce admissible evidence which
would allow the trier of fact rationally to conclude that the employment decision had not
been motivated by discriminatory animus.”116 If NWP makes this showing, Ms. Walker
would have the burden to prove its explanation was pretextual.
NWP’s briefing contains little discussion of these claims, asserting that summary
judgment is appropriate on them because they “arise out of the same conduct asserted
to support her statutory claims” so that if the statutory claims “fail as a matter of law,
then the state common law claims also fail.” 117

But given that this Court has denied

summary judgment on the FMLA and disability claims, summary judgment on the
related state law claims on the record before this Court is unwarranted.
114

Kinzel v. Discovery Drilling, Inc., 93 P.3d 427, 433 (Alaska 2004) (quoting Veco, Inc. v.
Rosebrock, 970 P.2d 906, 921 (Alaska 1999)).
115

Id. at 433 (Alaska 2004) (quoting Miller v. Fairchild Indus., Inc., 797 F.2d 717, 730-31 (9th
Cir. 1986)).

116

Id. at 433 (Alaska 2004) (quoting Miller, 797 F.2d at 730-31 (internal quotation marks
omitted)).

117

Docket 29 at 33 (Mot.).

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CONCLUSION
For the foregoing reasons, NWP’s Motion for Summary Judgment at Docket 29 is
DENIED.
DATED at Anchorage, Alaska this 28th day of January, 2013.
/s/ Sharon L. Gleason
United States District Judge

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