Rush v. State of Alaska et al

Filing 75

ORDER RE MOTION FOR SUMMARY JUDGMENT:IT IS ORDERED that Plaintiffs Motion to Supplement the Record at Docket 62 is DENIED. IT IS FURTHER ORDERED that Defendants Motion for Summary Judgment at Docket 45 is GRANTED.The Clerk of the Court is directed to enter a final judgment consistent with this order. (See Order for details). Signed by Judge Sharon L. Gleason on 06/03/2019. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

SALESIA L. RUSH,
Plaintiff,
v.
STATE OF ALASKA,
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES,

Case No. 3:16-cv-00233-SLG

Defendant.
ORDER REGARDING MOTION TO SUPPLEMENT
AND MOTION FOR SUMMARY JUDGMENT
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.
I. BACKGROUND 1
On October 5, 2016, Ms. Rush initiated this action against her former
employer, DHSS and several DHSS employees, against whom she alleged several

1

These facts are presented in the light most favorable to the nonmoving party for purposes of

claims, 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
A.

Events Prior to March 2012

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 Hispanic

the summary judgment motion.
2

Docket 1 (Compl.) at 1, 17–20.

3

Docket 5 (FAC); Docket 8 (Screening Order) at 12.

4

Docket 5 at 20–24, ¶¶ 156–68; Docket 8 at 13; see 42 U.S.C. § 2000e et seq.

5

Docket 45-38 (12/30/16 ASCHR Determination) at 4.

6

Docket 16 (Answer) at 2–3, ¶ 8; Docket 37-3 (Employee List) at 29.

7

Docket 37-3 at 29–30; Docket 5 at 11, ¶ 68; Docket 53 (S. Rush Affidavit) at 9, ¶ 23.

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woman, 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 90

8

Docket 37-3 at 29.

9

Docket 45-2 (6/26/12 DHSS Position Statement) at 2; Docket 37-3 at 29–30.

10

Docket 5 at 16, ¶ 128; Docket 16 at 14, ¶ 128.

11

Docket 45-5 (ASCHR Compl. No. J-09-271) at 1–2; Docket 45-41 (12/15/2009 EEOC Notice,
Charge No. 38A-2010-00044) at 1.

12

Docket 45-7 (3/3/2011 ASCHR Determination) at 3.

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days 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 April

13

Docket 45-41 (4/13/2011 EEOC Dismissal, Charge No. 38A-2010-00044) at 5.

14

Docket 45-2 (6/26/12 DHSS Position Statement, Ex. C., 9/7/10 Letter of Suspension) at 23.
DHSS asserts that it also disciplined Ms. Rush for violating the State of Alaska Technology
Policy, demonstrating inappropriate use of State time, and failing to follow the proper chain of
command. Docket 45-2 at 23.

15

Docket 51 (Opp’n) at 8. With regard to the emails, Ms. Rush “believe[s] that [she] had a right
to write what [she] wrote.” Docket 51 at 15. DHSS determined that the group emails were
inappropriate because they discussed offensive and threatening content such as: calling
coworkers and supervisors derogatory names, homophobic content, threatening coworkers, and
references to drug use and use of sex toys. See Dockets 48-1 to 48-18 (Email excerpts).

16

Docket 48-6 (9/7/10 Letter of Suspension for Ms. Cote) at 3–4; Docket 48-6 (9/7/10 Letter of
Suspension for Ms. Hornbeak) at 1–2; see Docket 51-7 (Req. for Admis. No. 33) at 1–2; Docket
45-32 (DHSS 8/12/11 Position Statement) at 3.
17

Docket 45-30 (ASCHR Compl. No. J-11-080); Docket 45-31 (4/7/2011 EEOC Notice, Charge

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19, 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.
B.

The Credit Card Incident

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 before

No. 38A-2010-00044) at 3.
18

Docket 45-31 (4/19/2011 ASCHR Closing Order) at 1.

19

Docket 45-34 (1/17/2012 EEOC Dismissal, Charge No. 38A-2011-00146) at 1.

20

Docket 45-34 at 1.

21

Docket 53 at 4–5, ¶ 15.

22

Docket 53 at 4–5, ¶ 15 (“Ms. Marshall also explained that I do not go by the name of Salesia,
that I go by ‘Lisa.’ The client said ‘I did not talk to Lisa. I talked to Salesia. She said her name
six times to make sure I had it right.”).

23

Docket 53 at 5, ¶ 15.

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transferring 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 loud

24

Docket 53 at 5, ¶ 15; Docket 51-14 (DHSS Response to Interrogatory No. 8) at 1.

25

Docket 5 at 18–19, ¶ 141; Docket 16 at 16, ¶ 141; Docket 53 at 5, ¶ 15.

26

Docket 16 at 16, ¶ 141; Docket 45 (MSJ) at 16.

27

Docket 53 at 5, ¶ 15.

28

Docket 53 at 5, ¶ 15.

29

Docket 5 at 19, ¶ 142; Docket 16 at 16, ¶ 142; Docket 53 at 6, ¶ 17.

30

Docket 45-2 at 5; Docket 53 at 6–7, ¶¶ 17, 18; Docket 48-21 (S. Rush Dep.) at 13:12–17.

31

Docket 53 at 6, ¶ 17.

32

Docket 48-21 at 12:19–13:11.

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enough 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
C.

Investigative Interview and Resignation

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 the

33

Docket 53 at 6, ¶ 17.

34

Docket 53 at 6, ¶ 17.

35

Docket 16 at 16, ¶ 143; Docket 45-35 (4/9/12 Notice of Investigative Interview) at 1.

36

Docket 51-13 (Req. for Admis. No. 8) at 1.

37

Docket 52 (Ex. 1, 4/10/2012 Email from Anne Knight) at 1.

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next 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 had

38

Docket 51 at 18; see Docket 53 at 1, ¶ 2; Docket 48-21 at 16:18–17:7. DHSS denies that Ms.
Rush was compelled to resign, and instead asserts that “BCP management recommended to
the Department that Ms. Rush be dismissed from her employment,” but no final decision had
been made before Ms. Rush voluntarily resigned. Docket 45-2 at 6; Docket 45 at 18.

39

Docket 45-3 (4/10/12 Letter of Resignation).

40

Docket 45-39 (ASCHR Compl. No. J-12-125) (which states “I would also like this complaint
filed with EEOC”).

41

Docket 45-39 at 1.

42

Docket 45-37 (6/1/16 ASCHR Determination).

43

Case No. 3AN-16-07449CI; Docket 16 at 17, ¶ 147.

44

Case No. 3AN-16-07449CI; Docket 16 at 17, ¶ 147; Docket 51-13 (Req. for Admis. No. 7) at

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made 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
II.

JURISDICTION

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
III.

MOTION TO SUPPLEMENT THE RECORD

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-

1.
45

Docket 1.

46

Docket 45-38 at 4–5. The notice authorized Ms. Rush to seek judicial review from the Alaska
Superior Court within 30 days. Docket 45-38 at 1.
47

Docket 51 at 2.

48

42 U.S.C. § 2000e et seq.

49

Docket 62 (Mot. to Supp.) at 1.

50

Docket 62-3 (Ex. 23).

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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 that

51

Docket 62-5 (Ex. 25).

52

Docket 62-2 (Ex. 22).

53

Docket 62-4 (Ex. 24).

54

Docket 62-1 (Ex. 21).

55

Ms. Rush attached the October 14, 2011 Letter of Instruction (Docket 62-3) to her Reply to
Opposition to Motion to Compel. Docket 65 at 1–2 (Reply to Mot. to Supp.); see Docket 42
(Reply to Opp’n to Mot. to Compel); Docket 41-11 (Ex. 22). Ms. Rush attached the October 1,
2009 and March 30, 2012 employee lists (Docket 62-2) to her Motion to Compel. See Docket 37
(Mot. to Compel); Docket 37-3 at 29-30 (Exs. 9 and 10). Ms. Rush attached the April 5, 2012
emails between Anne Knight and Tracey Marshall (Docket 62-4) to her Reply to Opposition to
Motion to Compel. See Docket 42 (Reply to Opp’n. to Mot. to Compel); Docket 42-6 (Ex. 17) at
1–2.
56

Docket 65 at 1–2, 4. Ms. Rush also contends that she submitted these documents “based on
the invitation of the Court during oral argument [for the Motion for Summary Judgment].” Docket
65 at 1. However, at that hearing, the Court explained that if Ms. Rush wanted the Court to
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Order re Motion for Summary Judgment
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Ms. Rush cannot satisfy the requirements of the former local rule then applicable
because “this material was available to Ms. Rush at the time she submitted her
Opposition”; and because she “knew or should have known that all of this material
may be pertinent at the time she submitted her Opposition.” 57
A.

Legal Standard

A district court has broad discretion in “supervising the pretrial phase of
litigation.” 58 Under Local Civil Rule 7.1(h)(2)(B), 59 supplemental factual materials
“may be filed only by leave of court” and “will not be routinely granted.” 60 A court
will consider “whether the material was available to the party when briefs were due”
and “whether the pertinence of the material was established at the times for

consider additional evidence that was not already in the record, then she could file a motion to
supplement and “explain why [she is] doing so at this time and didn’t do so when [she] filed [her]
opposition.” Docket 74 (Hr’g Transcript) at 3:20–21.
57

Docket 63 (Opp’n to Mot. to Supp.) at 2. DHSS cites to Local Civil Rule 7.1(i)(2)(B); the
applicable rule at the time of the filing of the motion was Local Civil Rule 7.1(h)(2)(B).

58

City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1065 (9th Cir. 2017) (quoting Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)).

59

The Local Civil Rules were revised effective December 7, 2018, after Ms. Rush filed her
motion to supplement. The Court will apply the former rule that was in effect when Ms. Rush
filed her motion. The current relevant Local Civil Rule is 7.1(d), which states in relevant part,
“after briefing of a motion is complete, supplementation of factual materials may occur only by
motion for good cause. The motion must . . . address the reasons earlier filing was not possible
or their relevance was not appreciated. Such motions will not routinely be granted.” Local Civil
Rule 7.1(d)(2) (D. Alaska) (2018). The revisions to the Local Civil Rules did not materially alter
the relevant rule; the Court would also reach the same conclusion if relying on the revised
version of the rule.
60

Local Civil Rule 7.1(h)(2)(B) (D. Alaska) (2008).

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briefing.” 61

The Ninth Circuit affirmed a district court’s denial of leave to

supplement the record when the moving party did so on the “eve of oral argument
in the district court,” where there was “no discernible reason” why the moving party
waited until the “eleventh-hour.” 62 In the instant case, Ms. Rush’s motion to
supplement was filed 12 days after oral argument on the summary judgment
motion. 63
B.

Analysis

Two of the documents attached to Ms. Rush’s motion to supplement, labeled
one and two above, have already been entered into the record by DHSS; one was
attached to its Motion for Summary Judgment as Exhibit U, 64 and one was attached
to its reply as Exhibit D. 65 Thus, the motion to supplement will be denied as moot
as to these documents as they are already part of the record. Similarly, with
respect to the documents labeled three and four above, 66 Ms. Rush attached these

61

Id.

62

E.E.O.C. v. Peabody W. Coal Co., 773 F.3d 977, 989–90 (9th Cir. 2014).

63

On November 2, 2018, the Court heard oral argument for the summary judgment motion and
on November 14, 2018, Ms. Rush filed the motion to supplement. See Docket 58 (Minute
Entry); Docket 62.

64

Docket 62-5 (Ex. 25) is the same as the first page of Docket 45-39 (Ex. U).

65

Docket 62-3 (Ex. 23) contains the same information as Docket 55-4 (Ex. D). These
documents are not identical, because Exhibit 23 at Docket 62-3 does not have Tracey
Marshall’s signature on it, but they contain the same information except for this difference.
66

See supra p. 9–10.

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two documents to the reply to her motion to compel. 67 Because these materials
are already part of the record, the Court may consider them; the Motion to
Supplement the Record is unnecessary as to those two documents and will be
denied on that basis. 68
With respect to the document labeled number five above, Ms. Rush asserts
that the 28-page chart is intended “to save the court time in [Ms. Rush’s] response.
The chart is a detailed chart of the acts listed in my First Amended Complaint.” 69
Thus, because the information is a restatement of the information already
contained in the FAC, the Court need not consider this summary separately but
instead refers to the FAC. 70 Therefore, the motion to supplement will be denied
as to this document.
For the foregoing reasons, the Motion to Supplement the Record will be
denied.
IV.

MOTION FOR SUMMARY JUDGMENT

DHSS seeks summary judgment on all remaining claims in the FAC. 71

67

Docket 62-2 (Ex. 22) at 1 is the same as Docket 42-2 (Ex. 13) at 2; and Docket 62-4 (Ex. 24)
is the same as Docket 42-6 (Ex. 17) at 1–2.
68

Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider
other materials in the record.”) (emphasis added).

69

Docket 65 at 2.

70

See Fed. R. Civ. P. 56(c)(3).

71

Docket 45 at 23–39.

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DHSS asserts that Ms. Rush has failed to plausibly allege facts sufficient to support
a prima facie case for disparate treatment, disparate impact, or retaliation. 72 Ms.
Rush asserts that DHSS is not entitled to summary judgment because there are
material facts in dispute. 73
A.

Legal Standard

Federal Rule of Civil Procedure 56(a) directs a district 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. 74

“For purposes of summary judgment, [the court] must accept the

nonmoving party’s evidence as true” and “inferences must be drawn in the light
most favorable to the nonmoving party.” 75 “[A] ‘judge’s function’ at summary
judgment is not ‘to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.’” 76
As a general matter, a court must liberally construe the pleadings of self-

72

Docket 45 at 23–38.

73

Docket 51 at 4.

74

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

75

Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1277 (9th Cir. 2017) (citing T.W. Elec. Serv.,
Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987)).

76

Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986)).

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represented litigants. And yet at the summary judgment stage, the Ninth Circuit
distinguishes between self-represented parties that are prisoners and those that
are not. 77 “[A]n ordinary pro se litigant, like other litigants, must comply strictly with
the summary judgment rules.” 78
DHSS urges the Court to disregard Ms. Rush’s affidavit, asserting it is selfserving and uncorroborated. 79 However,
“[t]hat the evidence is self-serving, of course, does not render it
improper. ‘[D]eclarations are often self-serving, and this is properly
so because the party submitting it would use the declaration to
support his or her position. Although the source of the evidence may
have some bearing on its credibility and on the weight it may be given
by a trier of fact, the district court may not disregard a piece of
evidence at the summary judgment stage solely based on its selfserving nature.’” 80
Therefore, the Court has carefully considered Ms. Rush’s sworn testimony along
with all the other evidence filed by the parties.

77

See Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010); Frost v. Symington, 197 F.3d
348, 352 (9th Cir. 1999).

78

Ponder, 611 F.3d at 1150 (citing Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007)). In
contrast, prisoner pro se litigants are expressly exempt from these rules, and in those cases, the
summary judgment standard is liberally construed. Id. (citing Jacobsen v. Filler, 790 F.2d 1362,
1365 n.4 (9th Cir. 1986)).
79

Docket 55 (Reply to Opp’n to MSJ) at 5–7.

80

Anderson v. City & Cnty. of San Francisco, 169 F. Supp. 3d 995, 1024 (N.D. Cal. 2016)
(alteration in original) (quoting Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir.
2015)).

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B.

Discussion
1.

Allegations From the 2009 and 2011 Charges

Title VII requires a plaintiff seeking to pursue employment discrimination in
federal court to first exhaust her administrative remedies by filing a timely charge
of discrimination with the EEOC or with a corresponding state agency. 81 Failure
to timely exhaust administrative remedies will ordinarily preclude a plaintiff from
maintaining those claims in federal court. 82
Title VII requires a litigant to file a charge with the state agency within 300
days after an allegedly adverse employment action has occurred. 83 Because
plaintiffs ordinarily draft the agency allegations without the aid of an attorney and
are “unschooled in the technicalities of formal pleading,” a court is “required to
construe [a plaintiff’s] EEOC charges with utmost liberality.” 84 After the EEOC
completes its investigation and issues a right to sue notice, an employee has 90

81

42 U.S.C. § 2000e-5(e).

82

See Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1202 (9th Cir. 2016) (citing Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 393–94 (1982)).
83

Alternatively, an employee bringing a charge to the EEOC, must do so within 180 days. 42
U.S.C. § 2000e-5(e)(1). An employee filing with the ASCHR may also elect to simultaneously
cross-file the charge with the EEOC, as Ms. Rush elected to do. Dockets 45-5 at 1, 45-30 at 1,
45-39 at 1.
84

Brown v. Dep’t of Pub. Safety, 446 Fed. App’x 70, 73 (9th Cir. 2011) (quoting Lyons v.
England, 307 F.3d 1092, 1104 (9th Cir. 2002)).

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days from receiving the notice in which to initiate a federal action, on the allegations
encompassed within the agency charge. 85
Here, on April 13, 2011, the EEOC issued a right to sue notice regarding the
2009 Charge. 86 In light of the foregoing, Ms. Rush’s right to bring a federal lawsuit
regarding the allegedly discriminatory acts contained in her 2009 Charge, including
a hostile work environment during that time frame, expired on or about July 12,
2011. 87 Similarly, on January 17, 2012, the EEOC issued a right to sue notice
regarding the 2011 Charge. 88 Ms. Rush’s right to bring a federal lawsuit regarding
allegedly discriminatory acts contained in the 2011 Charge expired on or about
April 16, 2012. 89 Ms. Rush could have timely filed a federal lawsuit regarding the

85

42 U.S.C. § 2000e-5(f)(1); see Scott v. Gino Morena Enters., LLC, 888 F.3d 1101, 1104 (9th
Cir. 2018) (holding that 90-day statute of limitations is triggered by EEOC giving right to sue
notice, not when plaintiff becomes eligible for right to sue notice). ASCHR had not yet
concluded its second investigation of Ms. Rush’s 2012 Charge on October 5, 2016, when Ms.
Rush initiated this federal action. However, Ms. Rush asserts that by December 30, 2016, when
the ASCHR issued its second determination of the 2012 Charge, “[she] had already received
[her] right to sue letter from the EEOC and filed in [f]ederal [c]ourt.” Docket 51 at 2. DHSS does
not contest the timeliness of Ms. Rush’s federal complaint or argue that it is barred by Title VII’s
statute of limitations.

86

Docket 45-41 at 5.

87

90 days after April 13, 2011 is July 12, 2011.

88

Docket 45-41 at 7.

89

90 days after January 17, 2012 is April 16, 2012. See Scott v. Gino Morena Enters., LLC,
888 F.3d 1101, 1108 n.6 (9th Cir. 2018) (“Although the statute refers to the 90–day clock
running from the ‘giving’ of the right-to-sue notice, the corresponding regulation requires the
right-to-sue notice to state that the aggrieved person is authorized to bring suit ‘within 90 days
from receipt of such authorization.’ We express no opinion on any potential discrepancy
between the statute and the regulation.”) (emphasis in original) (citation omitted) (quoting 29
C.F.R. § 1601.28(e)(1)).

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allegations contained in both the 2009 and 2011 Charges but did not do so. The
90-day time frame for pursuing those allegations in federal court expired long
before Ms. Rush initiated this action on October 5, 2016.
2.

Hostile Work Environment Claim

Ms. Rush maintains that under the continuing violations doctrine she may
now raise allegations regarding her earlier allegations. 90 That doctrine applies to
hostile work environment claims. However, in National Railroad Passenger Corp.
v. Morgan, the Supreme Court held that, “[h]ostile work environment claims are
different in kind from discrete acts.” 91 “Discrete acts” include allegations “such as
termination, failure to promote, denial of transfer, or refusal to hire,” among
others. 92 Discrete acts must occur within the statute of limitations period or else
they are time barred, and thus not actionable; acts that occurred prior to the statute
of limitations period may be considered only as background evidence. 93

In

contrast, claims of workplace harassment in the form of a hostile work environment
“are based on the cumulative effect of individual acts.” 94 Hostile work environment
claims are not time barred “so long as all acts which constitute the claim are part

90

Docket 51 at 29–30.

91

536 U.S. 101, 115 (2002); see also id. at 122; Ervine v. Desert View Reg’l Med. Ctr. Holdings,
LLC, 753 F.3d 862, 870 (9th Cir. 2014).

92

Morgan, 536 U.S. at 114.

93

Id. at 113.

94

Id. at 115.

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of the same unlawful employment practice and at least one act falls within the
[statute of limitations] time period.” 95
Ms. Rush asserts that her FAC contains a hostile work environment claim
and the continuing violations doctrine applies to permit her to seek compensation
for allegedly discriminatory conduct that began as early as April 2009 as part of a
single unlawful employment practice. 96 DHSS responds that the 2012 Charge and
the FAC clearly identify claims for disparate treatment, disparate impact, and
retaliation that arose from discrete acts in 2012, but not a claim for a long standing
hostile work environment. Therefore, DHSS maintains that the continuing violation
doctrine does not apply and allegedly discriminatory acts prior to Title VII’s 300day filing period are not actionable. 97
Ms. Rush’s 2012 Charge clearly identifies two discrete acts of discrimination:
3.
On March 31, 2012, respondent’s client filed a complaint
regarding a phone conversation she had with me over a credit card
issue. Respondent established that my coworker had actually made
the call to its client and falsely gave my name.
4.
On April 10, 2012, despite this knowledge, respondent
accused me of poor work performance and forced me to resign my
position. 98

95

Id. at 122.

96

Docket 51 at 29–30; Docket 5 at 2–20, ¶¶ 4–155.

97

Docket 45 at 24–26; Docket 55 at 3–5.

98

Docket 45-39 at 1.

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The 2012 Charge does not mention any prior acts that could be considered
workplace harassment, neither generally nor specifically. The only mention of any
acts prior to 2012 are Ms. Rush’s charges of discrimination in 2009 and 2011. In
this regard, the 2012 Charge states, “I believe [DHSS] discriminated against me
because of my age, race, and in retaliation for filing earlier discrimination
complaints.” 99 Liberally construed, Ms. Rush’s 2012 Charge alleges a claim for
retaliation, but not a hostile work environment claim. After the 2012 Charge was
filed, neither the ASCHR nor the EEOC investigated a hostile work environment
claim; nor did the 2012 Charge put either agency on notice of the need to conduct
any such investigation.
Ms. Rush asserts that she properly pled a hostile work environment claim
by using the words “hostile working environment” in Paragraph 67 of her FAC. 100
However, Paragraph 67 references only the 2009 Charge; it does not negate the
fact that the 2012 Charge only references two discrete acts in 2012 and not a long
term hostile work environment claim. 101 Ms. Rush also asserts that she “explained
to the ASCHR intake person that [she] felt this was related to [her] previous
discrimination complaints from 2009 and 2011 and they [were] continuing to come

99

Docket 45-39 at 1.

100

Docket 65 at 2; Docket 5 at 11, ¶ 67 (“On December 02, 2009, I filed a Complaint with the
Alaska State Commission of Human Rights for Racial Discrimination and Hostile Working
Environment.”).
101

See Docket 5 at 11, ¶ 67; Docket 45-5 at 1; cf. Docket 45-39 at 1.

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after [her].” 102 But this explanation only relates to a retaliation claim, not a claim of
hostile work environment. Furthermore, Ms. Rush did not provide any supporting
evidence that ASCHR had erroneously omitted a hostile work environment claim
that Ms. Rush had attempted to present to that agency in the 2012 Charge. 103
Because the 2012 Charge liberally construed, does not allege a hostile work
environment claim, such a claim would only be properly before the Court if it is “like
or reasonably related to the allegations contained” in the 2012 Charge. 104
However, the allegations in the 2012 Charge address only two discrete acts in
2012 that are not reasonably related to a longstanding hostile work environment
claim.
Based on the foregoing, Ms. Rush did not exhaust her administrative
remedies with respect to a hostile work environment claim in the 2012 Charge. 105
DHSS is entitled to summary judgment with respect to all allegations that precede

102

Docket 51 at 30.

103

Cf. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1101–03 (9th Cir. 2002), as amended (Feb.
20, 2002) (holding that plaintiff’s claims were exhausted when plaintiff provided an affidavit from
state agency that processed her complaint and pre-complaint questionnaire showing that claim
of sex harassment had been properly alleged but erroneously omitted by agency).
104

See Id. at 1100 (quoting Green v. Los Angeles Cnty. Superintendent of Schs., 883 F.2d 1472,
1475–76 (9th Cir. 1989)).

105

See Ryans v. Whatley, No. 1:11-CV-46 (MTT), 2012 WL 3260412, at *5 n.7 (M.D. Ga. Aug.
8, 2012) (holding that pro se plaintiff’s use of phrase “hostile work environment” did not save her
deficient pleadings, because “[w]hile the court ‘is to employ less stringent standards in
assessing pro se pleadings . . . than would be used to judge the final product of lawyers, this
leniency does not permit the [Court] to act as counsel for a party or to otherwise rewrite deficient
pleadings.’” (second and third alteration in original) (quoting Lampkin–Asam v. Volusia Cnty.
Sch. Bd., 261 Fed. App’x 274, 276–77 (11th Cir. 2008))).

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the March 2012 credit card incident and the April 2012 investigative interview and
subsequent resignation. Without a hostile work environment claim, the continuing
violations doctrine does not apply. Accordingly, Ms. Rush’s claims are limited to
the discrete acts of alleged discrimination and retaliation that she timely raised in
the 2012 Charge—the events that occurred on March 31, 2012 and April 10, 2012.
3.

Disparate Treatment

In the FAC, Ms. Rush alleges that DHSS treated her differently from her
Caucasian counterparts because Ms. Marshall “bullied and harassed” Ms. Rush
“instead of correcting the problem or firing Ms. Frank.” Ms. Rush maintains “the
defendants made false allegations to justify the adverse employment actions
against Ms. Rush. [DHSS] did not make false allegations against the Caucasian
employees.” 106
A plaintiff may prove race discrimination by disparate treatment by providing
either “direct or circumstantial evidence demonstrating that a discriminatory reason
‘more likely than not motivated’ the employer,” 107 or by relying on the McDonnell
Douglas framework. 108

Both parties’ briefs rely on the three-step McDonnell

Douglas burden shifting framework.

106

Docket 5 at 20–23, ¶ 156–60.

107

Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 691 (9th Cir. 2017) (quoting Metoyer v.
Chassman, 504 F.3d 919, 931 (9th Cir. 2007)).

108

Id. (“[N]othing compels the parties to use the McDonnell Douglas framework”) (citing
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)).

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a)

McDonnell Douglas Step One

In order to establish a prima facie case of disparate treatment, a plaintiff
must show each of the following: “(1) she belongs to a protected class; (2) she was
qualified for the position; (3) she was subjected to an adverse employment action;
and (4) similarly situated [non-African American individuals] were treated more
favorably, or her position was filled by a [non-African American individual].” 109 At
the summary judgment stage, a plaintiff need only provide “very little” evidence, 110
or “minimal [proof] and does not even need to rise to the level of a preponderance
of the evidence.” 111
“Title VII treats [a forced] resignation as tantamount to an actual
discharge.” 112 When an employer lacks good cause to terminate an employee, but
nevertheless threatens an employee with an ultimatum—forcing the employee to
choose between resignation and termination—the employee may reasonably
respond by choosing to resign in the face of certain termination. 113

109

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); see St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (holding that prima facie case for race discrimination was
supported by fact that terminated plaintiff’s position was filled by Caucasian individual)).
110

Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (citing Sischo–Nownejad v.
Merced Cmty. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir. 1991)).

111

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (citing Wallis v. J.R.
Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)).
112

Green v. Brennan, 136 S. Ct. 1769, 1776–77 (2016).

113

Debeikes v. Hawaiian Airlines, Inc., 141 F. Supp. 3d 1075, 1101 (D. Haw. 2015), aff'd, 725 F.
App'x 499 (9th Cir. 2018) (holding that when employer lacks good cause to believe there were

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DHSS does not dispute the first or second prong of Ms. Rush’s prima facie
case. It acknowledges that Ms. Rush, as an African American, is a member of a
protected class, and that Ms. Rush was qualified for her position. 114 It is also
undisputed that Ms. Rush’s CJT 1 position was filled by a Caucasian woman. 115
However, DHSS disputes that Ms. Rush was subjected to an “adverse employment
action.” 116 Ms. Rush responds that the March 31, 2012 credit card incident and
the April 10, 2012 investigative interview and subsequent resignation were each
adverse employment actions. 117
As to the credit card incident, Ms. Rush maintains that this “was not a
misunderstanding,” but that Ms. Frank intentionally stole Ms. Rush’s identity by
identifying herself as “Salesia” to a client on the phone and seeking credit card
information. 118 Moreover, Ms. Rush alleges that Ms. Frank’s impersonation was
the result of DHSS’s plan to “set [Ms. Rush] up so they could write another
disciplinary action against [her] because [she] was not allowed to ask for credit

grounds for termination, providing employee choice between resignation and termination could
establish that resignation was involuntary).
114

Docket 45 at 26.

115

Docket 51-14 (DHSS Response to Interrogatory No. 5).

116

Docket 45 at 27–28.

117

Docket 51 at 30–31, 33–34.

118

Docket 48-21 at 15:9–23.

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card information over the phone from the clients.” 119
An adverse action “in most cases inflicts direct economic harm” and must
be “more disruptive than a mere inconvenience.” 120 Ms. Rush admits that although
she filed a complaint with the Federal Trade Commission and the Anchorage
Police Department, the complaints were not investigated, and no credit cards or
bank accounts were opened in her name without her permission. 121
The Court assumes without deciding that a reasonable jury could infer that
Ms. Frank’s credit card actions were part of a DHSS plan to set up a disciplinary
action against Ms. Rush. However, if such a plan existed, it was unsuccessful
because there is no evidence of any economic or reputational harm to Ms. Rush
as a result of this incident. Although on April 2, 2012, there was a meeting and
raised voices discussion regarding Ms. Rush and Ms. Frank’s relationship and the
credit card incident, 122 Ms. Rush was not disciplined for allegedly taking a client’s
credit card information. Accordingly, even taking the evidence in the light most
favorable to Ms. Rush regarding this incident, there is no evidence from which a
reasonable jury could infer that the credit card incident constituted an adverse

119

Docket 53 at 2, ¶ 4.

120

Jackson v. Geithner, No. CV F 11-0055 LJO SKO, 2011 WL 2181394, at *9 (E.D. Cal. June
3, 2011) (first quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998); and then
quoting Crady v. Liberty Nat. Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)).

121

Docket 48-21 at 14:7–15:8.

122

Docket 53 at 6, ¶ 17; Docket 16 at 16, ¶ 141.

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employment action.
As to the April 10, 2012 incident, the email Ms. Knight sent when she had
“just returned” from the investigative interview with Ms. Rush places at issue the
question of whether Ms. Rush was compelled to resign. 123 DHSS asserts that “the
decision to terminate plaintiff’s employment could only be made by the
Commissioner of the Department of Health and Social Services . . . [and] at the
time plaintiff chose to resign, no final decision regarding plaintiff’s employment
status had been made.” 124 But Ms. Rush asserts she “was told by her union
representative that Tracey Marshall said that Ms. Rush could either resign that
afternoon or could come in the following morning and be terminated at the door.” 125
Based on that information, Ms. Rush indicates that she submitted her reservation.
Viewing the evidence in the light most favorable to Ms. Rush, DHSS
communicated to Ms. Hartlieb, who in turn communicated to Ms. Rush that she
must choose between resignation and termination. Ms. Rush then submitted her
letter of resignation. A resignation in those circumstances would constitute an
adverse employment action for purposes of a prima facie case, step one in the

123

See email cited supra Section I.C. ASCHR investigated but ultimately “did not resolve the
dispute about whether [DHSS] compelled [Ms. Rush] to resign.” Docket 45-38 at 4.

124

Docket 16 at 16, ¶ 143. DHSS admits that “[BCU] management recommended to the
Department that Ms. Rush be dismissed from her employment.” Docket 45-2 at 6; see Docket
45 at 18.

125

Docket 5 at 19, ¶ 143.

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McDonnell Douglas burden shifting framework.
b)

McDonnell Douglas Step Two

If a plaintiff establishes a prima facie case, then the burden of production
shifts to the employer to show that it had a legitimate business reason to support
its adverse action against the plaintiff. 126
DHSS contends that its legitimate nondiscriminatory reason for the adverse
employment action on April 10, 2012 was Ms. Rush’s “inappropriate workplace
communication.” 127 It maintains that Ms. Rush stated the following: “(1) Frank, her
coworker and lead, was deceitful; (2) Frank could not tell her what to do; (3) Frank
would have to learn how to adjust to the BCU; and (4) when she told Marshall, her
African-American supervisor, that she didn’t count as an African-American
because she was like President Barack Obama and could play either the black or
white card.” 128 These proffered statements, if established as having been made,
could constitute inappropriate workplace communication sufficient to establish a
“legitimate business reason” justifying DHSS’s adverse employment action.
Based on the foregoing the Court finds that DHSS has met its burden of production
at McDonnell Douglas step two.

126

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

127

Docket 45 at 30.

128

Docket 45 at 30–31.

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c)

McDonnell Douglas Step Three

If the defendant articulates a legitimate, nondiscriminatory reason for the
adverse action, then a plaintiff bears the burden to show that the employer’s
proffered reason is pretext for discrimination. 129 In order to show pretext, a plaintiff
can rely on either direct or circumstantial evidence. 130 Here, there is no direct
evidence of race discrimination in the record. Therefore, Ms. Rush must provide
circumstantial evidence; the law requires such evidence to be “specific” and
“substantial” to create a triable issue of whether DHSS’s proffered reason is
pretextual. 131 However, the Ninth Circuit has cautioned that this “standard is
‘tempered’ by [its] observation that a plaintiff's burden to raise a triable issue of
pretext is ‘hardly an onerous one.’” 132 The cumulative evidence must show either
“a discriminatory reason more likely motivated the employer or . . . that the
employer’s proffered explanation is unworthy of credence.” 133 In judging whether
the explanation is worthy of credence, “it is not important whether [the explanation

129

Villiarimo, 281 F.3d at 1062.

130

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

131

Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011) (citing Godwin, 150
F.3d at 1222); but see Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1029–31 (9th Cir.
2006) (questioning the continued viability of Godwin after Desert Palace, Inc. v. Costa, 539 U.S.
90, 100 (2003)).
132

Earl, 658 F.3d at 1113 (quoting Noyes v. Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007)).

133

Villiarimo, 281 F.3d at 1062 (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th
Cir. 2000)).

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is] objectively false . . . [r]ather, courts ‘only require that an employer honestly
believed its reason for its actions, even if its reason is foolish or trivial or even
baseless.’” 134 At the third step, the question of pretext “now merges with the
ultimate burden of persuading the court that [the plaintiff] has been the victim of
intentional discrimination.” 135
Ms. Knight’s email evidences that DHSS believed that inappropriate
communication was the reason for its action. In pertinent part, the email states:
Lisa was suspended for 10 days in 2010 and 3 day [sic] in March – all
with issues regarding inappropriate communication in the workplace.
Once again she is inappropriate towards a co-worker and her
supervisor, but she only sees it as being honest. Management doesn’t
believe that another suspension is going to change the way Lisa
communicates at all. 136
Ms. Rush admits telling Ms. Marshall that “[Ms.] Frank is . . . going to have to learn
to adjust to this office.” 137

Ms. Rush also admits that she called Ms. Frank

deceitful. 138 However, DHSS’s other allegations of inappropriate communication

134

Id. at 1063 (emphasis omitted) (quotation omitted).

135

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); see Costa v. Desert
Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002), aff’d, 539 U.S. 90 (2003) (“The burden
of persuasion always remains with the employee to prove the ultimate Title VII violation—
unlawful discrimination.”) (emphasis in original).
136

Docket 52 (Ex. 1) at 1.

137

Docket 48-21 at 12:20–23.

138

Docket 51 at 36; Docket 45 at 30.

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are controverted. Ms. Rush denies saying anything about Ms. Marshall’s race. 139
Ms. Rush also denies saying that Ms. Frank, a Criminal Justice Technician II,
“could not tell her what to do.” 140
At the summary judgment stage, the Court must draw all reasonable
inferences in Ms. Rush’s favor. However, even in doing so, on this record, Ms.
Rush has not provided circumstantial evidence sufficiently “specific” and
“substantial” to show that DHSS’s proffered reason is unworthy of credence. 141
The record also does not contain any direct evidence on credibility, such as
statements by DHSS that refer indirectly to Ms. Rush’s race or suggest race was
the reason for its April 2012 action. Nor does the record contain evidence that
anyone at DHSS harbored animus towards Ms. Rush because of her race. 142

139

Docket 51 at 37; cf. Docket 45 at 30–31.

140

Docket 51 at 36; cf. Docket 45 at 30.

141

Cf. Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1282–83 (9th Cir. 2017) (holding that
plaintiff had demonstrated pretext for sex discrimination when she provided evidence of
discrimination, including coworkers who testified that what plaintiff did was a common practice
rather than a terminable offense, and that she was replaced by a male who was certainly less
qualified, and arguably unqualified); E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1051–53 (9th Cir.
2009) (finding evidence sufficient to “allow a jury to infer that Boeing’s proffered reason . . .
[was] unworthy of credence” where the employee received scores indicating “no background or
experience” in areas where she had received higher scores in earlier evaluations, manager was
unable to articulate any particular reason why her soft skill scores went down, and manager
complained he could not communicate with her “dotted-line” manager but could not recall the
dotted line manager’s name; there was also detailed contradicting testimony from several
witnesses regarding why the scores were not credible).
142

See Ortiz v. Georgia Pac., 973 F. Supp. 2d 1162, 1176 (E.D. Cal. 2013) (granting summary
judgment to employer on disparate treatment claim based on plaintiff’s inability to present any
circumstantial evidence of discriminatory animus sufficient to establish pretext).

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Ms. Rush also has not produced evidence that a discriminatory reason more
likely motivated the forced resignation rather than the inappropriate workplace
communications. Ms. Rush has shown that her position was filled by a Caucasian
woman, which could be evidence of pretext if her replacement was less qualified
than Ms. Rush. 143 However, Ms. Rush did not provide any evidence as to the
replacement’s qualifications.

Ms. Rush points to DHSS’s employment record

dated April 12, 2012, regarding Ms. Rush’s resignation, which states in showing
the comments field, “Employee has left state.” 144 Ms. Rush denies that she left the
State of Alaska or that she even moved within the state. 145 But assuming the
statement was inaccurate, it has nothing to do with Ms. Rush’s race. It is not
evidence of, nor does it provide a reasonable inference of, race discrimination.
Although not dispositive, it is worth noting that the alleged acts of race
discrimination against Ms. Rush were carried out by two other African Americans
working in the BCU, including her African American supervisor. Furthermore, this
is not a case where Ms. Rush is the only African American employee in a group of
otherwise all Caucasian employees. 146 To the contrary, in 2012, 25% of BCU

143

Docket 51-14 (DHSS Response to Interrogatory No. 5). See Mayes, 846 F.3d at 1282.

144

Docket 45-4 (DHSS Employment Clearance Form).

145

Docket 53 at 2, ¶ 5 (“I did not leave the State. I still live in the same place I lived when I
worked for BCU.”).

146

Cf. Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000)
(finding issue of material fact of discrimination when plaintiff was only non-Caucasian full-time
faculty member in his department who did not receive tenured position). In March 2012, there

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employees were African Americans. 147 In order to survive summary judgment, Ms.
Rush needed to provide some evidence from which a jury could decide that DHSS
forced Ms. Rush to resign “due in part or whole to discriminatory intent” on account
of Ms. Rush’s race. 148 Ms. Rush has not produced such evidence. Accordingly,
the Court will grant DHSS’s motion for summary judgment with respect to Ms.
Rush’s disparate treatment claim.
4.

Retaliation

The Court focuses on Ms. Rush’s retaliation claims that relate to the March
2012 credit card incident and the April 2012 forced resignation . 149 Ms. Rush
maintains DHSS took these actions because she had made two prior formal
complaints of race discrimination, the 2009 and 2011 Charges. 150
In order to prevail on a claim for retaliation under Title VII, a plaintiff must
provide evidence showing the following: “(1) a protected activity; (2) an adverse
employment action; and (3) a causal link between the protected activity and the

were three African American women and one Hispanic woman in the BCU. Docket 37-3 at 29.
147

Docket 37-3 at 29.

148

Lahrichi v. Lumera Corp., 433 F. App’x 519, 520 (9th Cir. 2011) (affirming district court’s grant
of summary judgment in favor of employer and holding that plaintiff “’must produce some
evidence suggesting that’ [defendant’s] action ‘was due in part or whole to discriminatory
intent’”) (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)).
149

The Court only addresses allegedly retaliatory conduct that would be timely. See supra
IV.B.1.

150

Docket 5 at 23–24, ¶¶ 164–68.

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adverse employment action.” 151

“Title VII retaliation claims must be proved

according to traditional principles of but-for causation, not the lessened causation
test stated in [42 U.S.C.] § 2000e–2(m).” 152
The parties agree that Ms. Rush engaged in protected activity by filing the
2009 and 2011 Charges. 153 However, Ms. Rush’s retaliation claim cannot proceed
because she has not provided any evidence that these charges were the “but for”
cause of her forced resignation or any other adverse action. The charge of
discrimination closest to Ms. Rush’s April 2012 resignation had been made over
one year earlier—in March 2011. This gap in time between the protected activity
and the adverse action is insufficient to create an inference of causation in a
retaliation claim. 154 Without that inference, Ms. Rush must provide other evidence
to establish that the 2009 and 2011 Charges were the cause of her forced

151

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1034–35 (9th Cir. 2006).

152

Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).

153

Docket 55 at 19–20; Docket 51 at 40.

154

See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (noting that a
court may not infer causation from temporal proximity unless time between employer's
knowledge of protected activity and adverse employment action is “very close” and citing cases
for proposition that three-month and four-month time lapses insufficient to infer causation);
Cornwell, 439 F.3d at 1036 (holding that “district court did not err in concluding that too much
time had passed between Cornwell's complaints and his eventual termination” where the time
period was seven months); Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003),
as amended (Jan. 2, 2004) (holding thirteen months between adverse action and protected
activity insufficient to create inference of causation); Manatt v. Bank of Am., NA, 339 F.3d 792,
802 (9th Cir. 2003) (holding that nine months between adverse actions and protected activity
insufficient to establish causal link); cf. Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th Cir.
2004) (holding that seven weeks sufficient to support inference of causation).

Case No. 3:16-cv-00233-SLG, Rush v. State of Alaska, Dep’t of Health & Social Services
Order re Motion for Summary Judgment
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resignation, but she has not done so. Accordingly, the Court will grant DHSS’s
motion for summary judgment with respect to Ms. Rush’s retaliation claim.
5.

Disparate Impact

Ms. Rush alleges that DHSS employed a “practice of hiring and promotion
based on ‘who you know’ [that] provided [an] unfair advantage to Caucasian
employee[s in] supervisory positions.” 155 DHSS asserts that Ms. Rush’s claim of
disparate impact fails because the “complaint identifies no employment policy or
practice that results in a disparate impact.” 156 DHSS contends that the hiring and
promotion practice Ms. Rush identifies “is nothing more than ‘point[ing] to a general
employment policy,’ rather than isolating and identifying a specific practice.” 157
Indeed, DHSS and Ms. Rush agree that on the current record “there is no evidence
of policies causing disparate impact[].” 158
In order to succeed on a claim for disparate impact, a plaintiff must “(1) show
a significant disparate impact on a protected class or group; (2) identify the specific
employment practices or selection criteria at issue; and (3) show a causal
155

Docket 5 at 23, ¶ 163.

156

Docket 45 at 33.

157

Docket 45 at 33–34 (alteration in original) (quoting Meacham v. Knolls Atomic Power Lab.,
554 U.S. 84, 100 (2008)).

158

Docket 51 at 39; see Docket 45 at 33–34. Ms. Rush asserts that DHSS is delinquent in
producing the policies that she believes will support her claim and seeks leave of the Court to
“delay . . . determining this issue until the defense produces the policies [she] ha[s] requested.”
Docket 51 at 40. To the extent Ms. Rush is seeking leave of the Court to reopen discovery with
respect to DHSS’s policies, the Court declines to do so. See Docket 69 (Order Denying Motion
to Reopen Discovery).

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Order re Motion for Summary Judgment
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relationship between the challenged practices or criteria and the disparate
impact.” 159

“Statistical evidence is used to demonstrate how a particular

employment practice causes a protected minority group to be under represented
in a specific area of employment.” 160 “It is not sufficient to present evidence raising
an inference of discrimination on a disparate impact claim. The plaintiff ‘must
actually prove the discriminatory impact at issue.’” 161
The Court agrees with the parties; Ms. Rush has not identified a specific
employment practice or policy on which to base her disparate impact claim.
Furthermore, even if such a policy existed, Ms. Rush has not provided statistical
or other evidence that African Americans were negatively impacted by any such
policy. Thus, Ms. Rush has not provided sufficient evidence from which a jury
could infer that there was a disparate impact on African Americans. Therefore, the
Court will grant DHSS’s motion for summary judgment on that claim.
V.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that Plaintiff’s Motion to
Supplement the Record at Docket 62 is DENIED.

159

Adam v. Kempthorne, 292 F. App’x 646, 651–52 (9th Cir. 2008) (quoting Hemmings v.
Tidyman’s Inc., 285 F.3d 1174, 1190 (9th Cir. 2002)).
160

Paige v. California, 291 F.3d 1141, 1145 (9th Cir. 2002), as amended on denial of reh’g and
reh’g en banc (July 18, 2002).

161

Stout v. Potter, 276 F.3d 1118, 1122 (9th Cir. 2002) (quoting Rose v. Wells Fargo & Co., 902
F.2d 1417, 1421 (9th Cir. 1990).

Case No. 3:16-cv-00233-SLG, Rush v. State of Alaska, Dep’t of Health & Social Services
Order re Motion for Summary Judgment
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IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment at Docket 45 is GRANTED.
The Clerk of the Court is directed to enter a final judgment consistent with
this order.

DATED this 3rd day of June, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

Case No. 3:16-cv-00233-SLG, Rush v. State of Alaska, Dep’t of Health & Social Services
Order re Motion for Summary Judgment
Page 36 of 36