Tuia v. Municipality of Anchorage et al

Filing 38

ORDER granting in part and denying in part 25 Motion for Partial Summary Judgment. Signed by Judge H. Russel Holland on 1/7/21. (JLH, COURT STAFF)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

JARED TUIA,

)
)
Plaintiffs, )
)
vs.
)
)
MUNICIPALITY OF ANCHORAGE and
)
ANCHORAGE POLICE DEPARTMENT,
)
)
Defendants.
)
_______________________________________)

No. 3:19-cv-0326-HRH

ORDER
Motion for Partial Summary Judgment
Defendants move for partial summary judgment.1 This motion is opposed.2 Oral
argument was not requested and is not deemed necessary.
Facts
Plaintiff is Jared Tuia. Plaintiff “is a person of color, 1/2 Samoan, and classified as
a Pacific Islander.”3 Defendants are the Anchorage Police Department (“APD”) and the
Municipality of Anchorage.

1

Docket No. 25.

2

Docket No. 32.

3

Second Amended Complaint at 2, ¶ 4, Docket No. 26.
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Plaintiff was employed by APD as a police officer from 1999 until June 29, 2020.
Plaintiff advanced to the rank of lieutenant and applied for a promotion to captain in 2015,
2017, 2018, and 2020. Plaintiff was denied these promotions and alleges that each time
“Lieutenants with lesser time in grade and lesser qualifications were promoted instead.”4
Plaintiff alleges that when he asked why he was not promoted in 2015, “he was told he could
accomplish great things, ‘somewhere other than the APD.’”5 He alleged that when he “asked
for a debriefing about why he was not promoted in 2017, no debriefing was provided” and
instead he was transferred to the property crimes division.6 Plaintiff alleges that after he
“started inquiring why he had not been promoted he started experiencing frequent transfers”
and that “[b]etween 2015 and 2018 he was transferred more than any other Lieutenant at the
Anchorage Police Department.”7 Plaintiff alleges that after he was denied promotion in
2018, he “ask[ed] for a debriefing to explain why he was not promoted for the third time,”
but “none was provided.”8
Plaintiff filed a charge of discrimination with the EEOC on September 24, 2018.
Plaintiff alleged that he had been discriminated against based on his race, color, and national

4

Id. at 3, ¶ 13.

5

Id. at 3, ¶ 14.

6

Id. at 3, ¶ 15.

7

Id. at 3, ¶ 16.

8

Id. at 4, ¶ 18.
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origin in connection with the 2018 denial of promotion.9 On December 10, 2018, plaintiff
filed an amended charge to include the 2015 and 2017 denials of promotion.10
The EEOC issued plaintiff a right to sue letter on August 2, 2019.
Plaintiff commenced this action on October 30, 2019. In his second amended
complaint, plaintiff states five causes of action. In the first cause of action, plaintiff asserts
Title VII discrimination claims. In the second cause of action, plaintiff asserts retaliation
claims pursuant to Title VII and AS 18.80.220(a)(1). In the third cause of action, plaintiff
asserts state law discrimination claims pursuant to AS 18.80.220(a)(1). In the fourth cause
of action, plaintiff asserts a breach of the covenant of good faith and fair dealing claim. In
the fifth cause of action, plaintiff asserts a constructive discharge claim.
Defendants now move for summary judgment11 on plaintiff’s claims based on the
2015 denial of promotion, his federal claims based on the 2017 denial of promotion, and his
federal claims based on the 2020 denial of promotion.

9

Exhibit A at 1, Defendants’ Preliminary Motion for Partial Summary Judgment [etc.],
Docket No. 25.
10

Exhibit B, Defendants’ Preliminary Motion for Partial Summary Judgment [etc.],
Docket No. 25.
11

Plaintiff suggests that this is actually a Rule 12(b)(6) motion because defendants did
not offer any evidence in support of their motion. However, because both defendants and
plaintiff have offered evidence beyond the pleadings, the court has treated the instant motion
as a summary judgment motion.
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Discussion
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
initial burden is on the moving party to show that there is an absence of genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets
its initial burden, then the non-moving party must set forth specific facts showing that there
is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In deciding a motion for summary judgment, the court views the evidence of the non-movant
in the light most favorable to that party, and all justifiable inferences are also to be drawn in
its favor. Id. at 255. “‘[T]he court’s ultimate inquiry is to determine whether the ‘specific
facts’ set forth by the nonmoving party, coupled with undisputed background or contextual
facts, are such that a rational or reasonable jury might return a verdict in its favor based on
that evidence.’” Arandell Corp. v. Centerpoint Energy Services, Inc., 900 F.3d 623, 628–29
(9th Cir. 2018) (quoting T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 631 (9th Cir. 1987)).
Defendants first move for summary judgment on plaintiff’s Title VII discrimination
and retaliation claims which are based on the 2015 and 2017 denials of promotion on the
ground that these claims are barred by the statute of limitations. “Claims filed directly with
the EEOC must be filed within 180 days of the discriminatory act.” Mun v. Univ. of Alaska
at Anchorage, 378 F. Supp. 2d 1149, 1155 (D. Alaska 2005). Plaintiff concedes that these

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claims are time barred.12 Defendants are entitled to summary judgment dismissing plaintiff’s
Title VII discrimination and retaliation claims which are based on the 2015 and 2017 denials
of promotion.
Defendants next move for summary judgment on plaintiff’s state law discrimination
and retaliation claims which are based on the 2015 denial of promotion. A two-year statute
of limitations applies to claims such as this which are brought pursuant to AS 18.80.220.
Russell v. Municipality of Anchorage, 743 P.2d 372, 374 and n.8 (Alaska 1987). Defendants
argue that because plaintiff filed his complaint on October 30, 2019, any AS 18.80.220
claims occurring before October 30, 2017 are time barred unless they are equitably tolled.
“‘The equitable tolling doctrine applies to relieve a plaintiff from the bar of the statute
of limitations when he has more than one legal remedy available to him.’” Beegan v. State,
Dep’t of Transp. & Public Facilities, 195 P.3d 134, 141 (Alaska 2008) (quoting Dayhoff v.
Temsco Helicopters, Inc., 772 P.2d 1085, 1087 (Alaska 1989)). In addition, there are “three
additional elements” that “must be met for equitable tolling to apply: (1) pursuit of the initial
remedy must give the defendant notice of the plaintiff’s claim; (2) the defendant’s ability to
gather evidence must not be prejudiced by the delay; and (3) the plaintiff must have acted
reasonably and in good faith.” Id. Defendants argue that plaintiff’s EEOC filing in 2018
cannot save his 2015 state law discrimination and retaliation claims because the two-year

12

Plaintiff’s Opposition to Defendants’ Motion for Partial Summary Judgment at 6,
Docket No. 32.
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statute of limitations had run on the 2015 conduct before plaintiff filed his EEOC charge in
2018.
In response, plaintiff argues that equitable tolling would apply to his state law
discrimination and retaliation claims which are based on the 2017 denial of promotion
because he filed his EEOC charge within two years of that event. However, defendants did
not move for summary judgment on plaintiff’s state law discrimination and retaliation claims
based on the 2017 denial of promotion. Rather, defendants move for summary judgment on
plaintiff’s state law discrimination and retaliation claims which are based on the 2015 denial
of promotion.
As to those claims, equitable tolling does not apply. Implicit in the first element of
equitable tolling, that pursuit of the initial remedy must give the defendant notice of the
plaintiff’s claim, is a requirement that the plaintiff must have begun his initial pursuit of a
remedy during the limitations period. In order for equitable tolling to apply to plaintiff’s
2015 state law discrimination and retaliation claims, plaintiff would have had to file his
EEOC complaint within two years of the 2015 denial of promotion, which plaintiff did not
do.
The continuing violation doctrine also cannot save plaintiff’s 2015 state law
discrimination and retaliation claims. To prevail on this theory, plaintiff would have to
“demonstrate that” the 2015 claims “are so related to the timely filed . . . claim[s] that they

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constitute a continuing violation.” Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1249 (Alaska
2001). Here, each denial of promotion constitutes a separate and discrete act.
Plaintiff then argues that his 2015 state law discrimination and retaliation claims are
saved by the discovery rule. “‘[T]he statute of limitations does not begin to run until the
claimant discovers, or reasonably should have discovered, the existence of all elements
essential to the cause of action.’” Russell, 743 P.2d at 375 (quoting Hanebuth v. Bell
Helicopter Int’l, 694 P.2d 143, 144 (Alaska 1984)). Plaintiff argues that he did not discover
all the elements essential to his state law discrimination and retaliation claims until 2018.
Plaintiff avers that although he asked why he was not promoted in 2015, 2017, and 2018,
it was not until September 11, 2018, that a Lieutenant McKinnon told him that “the Chief had
already decided who he was going to promote before the applications for promotion to
Captain were even advertised.”13 Plaintiff avers that “[i]t was that disclosure that convinced
me to file an EEOC claim on 9/24/2018, because it indicated that the promotion process itself
was a sham.”14 Plaintiff also points out that he has alleged that he asked why he was not
promoted in 2015 and 2017, but was given no explanation. Plaintiff insists that he did not
know that he was being discriminated against until 2018, which he argues means that his
2015 state law discrimination and retaliation claims are not barred by the statute of
limitations.
13

Declaration of Jared Tuia at 2-3, ¶ 8, appended to Plaintiff’s Unopposed Motion
[etc.], Docket No. 33.
14

Id. at 3, ¶ 9.
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“Under the discovery rule the relevant inquiry is the date when [plaintiff] reasonably
should have known of the facts supporting h[is] cause of action.” Id. “Ordinarily summary
judgment on this issue would be inappropriate. . . . If, however, there are uncontroverted
facts that indicate when [plaintiff] reasonably should have known that []he had a cause of
action, then this court can dispose of the question as a matter of law.” Id. Defendants argue
that, in 2015, plaintiff had “notice of facts sufficient to prompt a person of average prudence
to inquire, and thus should be deemed to have notice of all facts which reasonable inquiry
would disclose.” Id. at 376 (citation omitted).
Plaintiff avers that he asked for an explanation of the 2015 denial of promotion and
got “a confusing explanation that ‘I could do better elsewhere,’ which did not answer the
question as to what I could do better to earn a promotion.”15 Plaintiff also avers that in 2017,
“when I questioned why I was not promoted, I was not given any explanation.”16 Plaintiff
has also alleged that he began being transferred more frequently after he questioned the 2015
denial. But these facts are not necessarily sufficient to put plaintiff on notice that he had
potential discrimination and retaliation claims. Nothing about the explanation given plaintiff
in 2015, the lack of an explanation in 2017, or the transfers, on their face, suggest that
plaintiff was being discriminated against because of his race, color, or national origin. With
what is currently before it, the court cannot conclude, as a matter of law, that plaintiff should

15

Id. at 2, ¶ 6.

16

Id. at 2, ¶ 7.
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have reasonably discovered that he had discrimination and retaliation claims in 2015. Thus,
defendants are not entitled to summary judgment on plaintiff’s state law discrimination and
retaliation claims which are based on the 2015 denial of promotion.
Defendants also move for summary judgment dismissing plaintiff’s breach of the
implied covenant claim to the extent that it is based on the 2015 denial of promotion on the
ground that this claim is barred by the statute of limitations. But, this claim may be timely
for the same reason that plaintiff’s state law discrimination and retaliation claims which are
based on the 2015 denial of promotion are timely. Defendants are not entitled to summary
judgment on plaintiff’s breach of the implied covenant claim to the extent that it is based on
the 2015 denial of promotion.
Finally, defendants move for summary judgment on plaintiff’s Title VII discrimination
and retaliation claims which are based on the 2020 denial of promotion for failure to exhaust
administrative remedies. “Under Title VII, an aggrieved person wishing to bring a claim
against an employer must exhaust administrative remedies by filing a charge with the Equal
Employment Opportunity Commission (the ‘EEOC’) or a qualifying state agency and
receiving a right-to-sue notice.” Scott v. Gino Morena Enterprises, LLC, 888 F.3d 1101,
1104 (9th Cir. 2018). Plaintiff concedes that his 2020 Title VII claims are subject to
dismissal for failure to exhaust administrative remedies.17 Defendants are entitled to

17

Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment at 7, 11,
Docket No. 32.
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summary judgment dismissing plaintiff’s Title VII claims which are based on the 2020 denial
of promotion.
Conclusion
Defendants’ motion for partial summary judgment18 is granted in part and denied in
part. Plaintiff’s federal claims based on the 2015 and 2017 denials of promotion are
dismissed as time barred. Plaintiff’s federal claims based on the 2020 denial of promotion
are dismissed for failure to exhaust administrative remedies. Defendants’ motion is
otherwise denied.
DATED at Anchorage, Alaska, this 7th day of January, 2021.
/s/ H. Russel Holland
United States District Judge

18

Docket No. 25.
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