Jacobson v. Ketchikan Police Department et al

Filing 76

Order on Motion for Summary Judgment

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ANDREA JACOBSON,
Plaintiff,
vs.

Case No. K03-0003 CV (RRB)

KETCHIKAN POLICE DEPARTMENT;
CITY OF KETCHIKAN, and
Individually DAN ANSLINGER,
Individually and as Police
Chief; GRANT SIREVOG,
individually and as Deputy and
current Police Chief; KARL
AMYLON, Individually and as
Ketchikan City Manager,

ORDER REGARDING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

Defendants.

I.

INTRODUCTION
Before the Court are Defendants with a Motion for Summary

Judgment (Docket No. 28).

Defendants argue the Court should grant

their Motion for Summary Judgment because Plaintiff Andrea Jacobson
“cannot

establish

a

prima

facie

case

of

discrimination

retaliation, and as a result the rest of her claims fail.”1

1

Clerk’s Docket No. 28 at 2.

ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 1
K03-0003 CV (RRB)

or

In the

alternative, Defendants argue partial summary judgment should be
granted since:
[Plaintiff’s] claims in part are time barred,
there is no basis to impose punitive damages,
or damages for constructive discharge, the
claims against individuals on Counts I, III,
IV and V, should be dismissed since no claim
can be stated against them, Count IV,
[P]laintiff’s [§] 1983 claim[,] should be
dismissed since [P]laintiff’s speech is not
protected, Count IV, should be dismissed
against the City [of Ketchikan] and [the
Ketchikan Police Department (“KPD”)] since
there is no official capacity claim that can
be
stated,
qualified
immunity
requires
dismissal of the individual [D]efendants in
Count IV, and [P]laintiff’s constructive
discharge and her claims regarding the Deputy
Chief promotion should be dismissed for
failure
to
exhaust
administrative
and
contractual remedies.2
Plaintiff opposes at Docket 43 and argues:
The facts viewed most favorably to Plaintiff, with
inferences in her favor, clearly show she has established
her prima facie case for failure to promote due to gender
discrimination and retaliation, and she has ample
evidence of pretext. The same facts and circumstances
support Plaintiff’s § 1983 claims and, therefore,
Defendants’ motion should be denied and trial of this
matter before a jury should proceed.3
Notwithstanding, Plaintiff concedes that there are three aspects of
Defendants’ motion to which she does not object:
(1) [Plaintiff] agrees she is making no
damages claims for incidents taking place
before January 24, 2001; prior events and her

2

Id.

3

Clerk’s Docket No. 43 at 2-3.

ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 2
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employment history are discussed as background
evidence to her timely claims, as approved in
National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002)[;] (2) Plaintiff does not
contend the individual [D]efendants should be
personally liable under Title VII or [Alaska
Statute §] 18.80.220; but she does make claims
against the individuals pursuant to [Alaska
Statute §] 18.80.260 and § 1983[; and] (3)
Plaintiff does not object to the dismissal of
her breach of contract claim (Count V).4
Consequently, inasmuch as Plaintiff has
withdrawn completely two of the claims of
discriminatory and/or retaliatory failure to
promote, i.e., the promotion of Sergeant Alan
Bengaard to Lieutenant of Investigations, and
the promotion of Lieutenant Guzman to the
Deputy Chief position,5
the Court GRANTS “Defendants summary judgment on Counts I through
IV to the extent that they are based on a claim of discrimination,
retaliation, aiding and abetting, or a § 1983 violation in failing
to promote [P]laintiff to those positions.”6 Moreover, inasmuch as
“Plaintiff has also failed to make an argument in her opposition to
dismissing

Dan

individually
discrimination

Anslinger,
named
and

Grant

Sirevog,

[D]efendants
Count

III

from

involving

4

I

Amylon

as

involving

retaliation,”7

the

Clerk’s Docket No. 45 at 2.

6

Count

Karl

Id. at 33.

5

and

Id. (emphasis added).

7

Id. Moreover, Plaintiff conceded, at oral argument, that
said claims against the individual Defendants are not viable based
(continued...)
ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 3
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individual Defendants are hereby DISMISSED from Counts I and III.
And, because Plaintiff “has withdrawn completely her claim that she
can establish a breach of the implied covenant of good faith and
fair dealing, Count V of her complaint,”8 judgment is entered
DISMISSING Count V in favor of Defendants.

As to the remainder of

Defendants’ arguments, the Court’s decision follows.9
II.

FACTS
Inasmuch as the facts are well known to the parties and

more than substantially briefed within the applicable pleadings,10
they are not repeated herein except as necessary.
III. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides
that summary judgment should be granted if there is no genuine
dispute as to material facts and if the moving party is entitled to
judgment as a matter of law.

The moving party has the burden of

7

(...continued)
upon federal and state law.
8

Id.

9

Oral argument was heard on the motion on November 22,
2005, in Anchorage, Alaska.
10

“The Court has been provided an
the underlying facts giving rise to this
the motion for summary judgment and in
motion.” Clerk’s Docket No. 45 at 2. See
1-19; and Clerk’s Docket No. 43 at 1-32.

extensive discussion of
case in the briefing on
the opposition to the
Clerk’s Docket No. 28 at

ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 4
K03-0003 CV (RRB)

showing that there is no genuine dispute as to material fact.11 The
moving party need not present evidence; it need only point out the
lack of any genuine dispute as to material fact.12

Once the moving

party has met this burden, the nonmoving party must set forth
evidence of specific facts showing the existence of a genuine issue
for trial.13

All evidence presented by the non-movant must be

believed for purposes of summary judgment, and all justifiable
inferences must be drawn in favor of the non-movant.14 However, the
nonmoving party may not rest upon mere allegations or denials, but
must show that there is sufficient evidence supporting the claimed
factual dispute to require a fact-finder to resolve the parties’
differing versions of the truth at trial.15
IV.

DISCUSSION
A.

Plaintiff’s Affidavit Shall Be Considered by the Court.
Plaintiff has filed a supplemental affidavit (Docket

No. 39) with her Opposition to Defendants’ Motion for Summary
Judgment (Docket No. 43).

In response, Defendants filed a Motion

to Strike Plaintiff’s Affidavit (Docket No. 59), wherein Defendants

11

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

12

Id. at 323-325.

13

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9

(1986).
14

Id. at 255.

15

Id. at 248-9.

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argue the affidavit should be stricken because it is “self-serving”
and/or a sham.

While the affidavit may be “self-serving,” the

Courts notes:
[A] non-moving party is not precluded from
elaborating upon, examining, or clarifying
prior testimony elicited by opposing counsel
on deposition, minor inconsistencies that
result from an honest discrepancy, a mistake,
or newly discovered evidence.16
Consequently, Defendants’ Motion to Strike Plaintiff’s Supplemental
Affidavit in Support of Opposition to Motion for Summary Judgment
(Docket No. 59) is hereby DENIED but without prejudice. Defendants
may, more appropriately, object to statements made by Plaintiff,
both in her affidavit and made orally, at or during trial.
B.

Count I - Gender Discrimination.
Defendants move for summary judgment on the state and

federal gender discrimination claims Plaintiff made in Count I of
her Complaint.17
In her opposition, [Plaintiff] argues that
Defendants are not entitled to summary
judgment on the gender discrimination claims
because she has established a prima facie case
that she was qualified for the three
sergeant’s [sic] and one lieutenant’s position
offered in 2001 and 2002, and because the

16

Messick v. Horizon Industries Inc., 62 F.3d 1227, 1231
(9th Cir. 1995).
17

Clerk’s Docket No. 45 at 15.

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other employees with similar qualifications
were treated more favorably.18
Plaintiff then argues Defendants’ actions were pretextual in that
Defendants have failed to articulate nondiscriminatory reasons for
their actions.19
1.

The Prima Facie Case.

Pursuant to Dominguez-Curry v. Nevada Transp. Dept., 424
F.3d 1027, 1037 (9th Cir. 2005),
[P]laintiff must show that (1) she belongs to
a protected class; (2) she applied for and was
qualified for the position she was denied; (3)
she was rejected despite her qualifications;
and (4) the employer filed the position with
an employee not of [P]laintiff’s class, or
continued to consider other applicants whose
qualifications
were
comparable
to
[P]laintiff’s after rejecting plaintiff. See
McDonell Douglas [Corp. v. Green, 411 U.S. 792
(1973)]. At summary judgment, the degree of
proof necessary to establish a prima facie
case is “minimal and does not even need to
rise to the level of a preponderance of the
evidence.” Lyons v. England, 307 F.3d 1092,
1112 (9th Cir. 2002)(quoting Wallis v. J.R.
Simplot Co., 26 F.3d 885, 889 (9th Cir.
1994)).
It’s undisputed that Plaintiff – a female – belongs to a
protected class.

It’s further undisputed that Plaintiff was not

selected for promotion to any of the positions for which she
applied and that those positions were filled by employees not of

18

Id. (citation omitted).

19

Id.

ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 7
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her class, i.e., the positions were filled by men.

Defendants

contend, however, that Plaintiff was not otherwise “qualified” for
the promotions she sought.

However, to establish a prima facie

case, Plaintiff need only show “by a preponderance of the evidence”
that she was qualified for the position.20
done

so.21

As

a

result,

the

Court

Plaintiff has clearly

concludes

Plaintiff

has

successfully established a prima facie case of discrimination.22
2.

Pretext.

[Once] established, the prima facie case
creates a rebuttable presumption that the
employer unlawfully discriminated against the
plaintiff. Id. The burden of production then
shifts to the employer to articulate a
legitimate, nondiscriminatory reason for its
action.
Id.
If the employer meets this
burden,
the
presumption
of
unlawful
discrimination “simply drops out of the
picture.” St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 511 (1993). The plaintiff must then
produce sufficient evidence to raise a genuine
issue of material fact as to whether the
employer’s proffered nondiscriminatory reason
is merely a pretext for discrimination.

20

1 Barbara Lindemann & Paul Grossman, Employment
Discrimination Law 726 (3d ed. 1996)(citations omitted).
21

Indeed, Plaintiff “was a 21 year police officer at [the]
Ketchikan Police Department,” Clerk’s Docket No. 43 at 2, and a
“review of [her] performance evaluations indicates they are very
good, with a large number of 4's and 5's, the highest possible
marks.” Id. at 8.
22

Had the Court utilized Defendants’ test to establish a
prima facie case for discrimination, see McGinest v. GTE Service
Corp., 360 F.3d 1103 (9th Cir. 2004); Jauregui v. City of Glendale,
852 F.2d 1128 (9th Cir. 1988), which test it did not use, it would
also have found in favor of Plaintiff on this issue.
ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 8
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Coleman v. Quaker Oats Co., 232 F.3d 1271,
1282 (9th Cir. 2000). The plaintiff may show
pretext either (1) by showing that unlawful
discrimination more likely motivated the
employer, or (2) by showing the employer’s
proffered explanation is unworthy of credence
because it is inconsistent or otherwise not
believable. Godwin v. Hunt Wesson, Inc., 150
F.3d
1217,
1220-22
(9th
Cir.
1998).
Ultimately, the plaintiff’s burden is to
produce some evidence suggesting that [the
defendant’s] failure to promote [her] was due
in part or whole to discriminatory intent.23
Plaintiff

has

established

a

prima

case

for

discrimination, and Defendants have articulated a legitimate nondiscriminatory reason for their conduct: the other candidates were
more qualified for the promotions.24

As a result, Plaintiff must

produce “specific, substantial evidence” that Defendants’ reasons
for not promoting her were “pretextual.”25

To that end, Plaintiff

provides the Court with eleven bullet point assertions.26

While

Defendants argue “these ipse dixit assertions do not establish
pretext

23

or

demonstrate

inconsistency

or

unbelievability

or

a

Dominguez-Curry, 424 F.3d at 1037.

24

Clerk’s Docket No. 45 at 27 (“The undisputed evidence in
this case reveals that the [Ketchikan Police Department] selected,
and honestly believed it selected, the most qualified and highest
scoring candidates when it made its promotion decisions.”).
25

Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.

1983).
26

Clerk’s Docket No. 43 at 52-3.

ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 9
K03-0003 CV (RRB)

discriminatory

motive,”27

the

Court

concludes

Plaintiff’s

assertions, when combined with the entirety of the record, reveal
there are genuine factual disputes regarding which candidates were
more

qualified

for

the

promotions

at

issue.28

Consequently,

Defendants’ Motion for Summary Judgment (Docket No. 28) is hereby
DENIED with respect to Count I.
C.

Count II – Alaska Stat. § 18.80.26029.
“Plaintiff seeks relief in Count II on the ground that

individual Defendants Anslinger, Sirevog, and Amylon aided and
abetted and conspired with each other to prevent her from receiving
promotions.”30

Defendants counter and argue “[t]he Court should

reject [Plaintiff’s] argument because it is not supported by any
evidence and [is] contrary to the law.”31

The Court agrees.

Defendants’ Motion for Summary Judgment is hereby GRANTED with
respect to Count II.

27

Clerk’s Docket No. 45 at 28-9 n.7.

28

“Particularly noteworthy are the 4's and 5's [Plaintiff]
received for her supervisory skills, which was the reason advanced
contemporaneously for the [alleged] failure to promote [Plaintiff]
to the . . . positions she challenges in this litigation.” Clerk’s
Docket No. 43 at 8.
29

Alaska Stat. § 18.80.260 provides: “It is unlawful for a
person to aid, abet, incite, compel, or coerce the doing of an act
forbidden under this chapter or to attempt to do so.”
30

Clerk’s Docket No. 45 at 32 (citation omitted).

31

Id.

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D.

Count III – Retaliation.
In Count III, Plaintiff filed a retaliation claim under

Title VII and Alaska Statute § 18.80.220 alleging Defendants
“retaliated

against

[Plaintiff]

for

reporting

her

alleged

discrimination, failure to promote and unlawful conduct causing her
constructive discharge, and filing complaints with [the Alaska
State Commission for Human Rights (ASCHR)].”32

Defendants oppose

and argue the “temporal connection” between the protected activity
and the alleged adverse action is too great.
In order to make out a prima facie case of
retaliation, a plaintiff must show that (1)
she was engaging in protected activity, (2)
the employer subjected her to an adverse
employment decision, and (3) there was a
causal link between the protected activity and
the employer’s action.33
Moreover, “[t]o support an inference of retaliatory motive, the
adverse employment decision must have occurred ‘fairly soon after
the employee’s protected expression.’”34
“Over 8 years elapsed from the time [Plaintiff filed] her
ASCHR complaint in April 1992 and her failure to receive the

32

Id. at 34 (citation omitted).

33

Bergene v. Salt River Project Agr. Imp. and Power Dist.,
272 F.3d 1136, 1140-41 (9th Cir. 2001)(citing Folkerson v. Circus
Circus Enterprises, Inc., 107 F.3d 754, 755 (9th Cir. 1997)).
34

Clerk’s Docket No. 45 at 35 (quoting Paluck v. Gooding
Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir. 2000))(emphasis
added). See also Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1065 (9th Cir. 2002).
ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 11
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sergeant’s position that Waldren received in January 2001.”35

And,

“between nine months and a year passed from the time [Plaintiff]
filed her March 2001 ASCHR complaint regarding her failure to
obtain the Waldren promotion and her subsequent failure to be
promoted . . . .”36

As a result, and for additional reasons more

carefully articulated in Defendants’ Reply to Opposition to Motion
for Summary Judgment (Docket No. 45), the Court concludes Plaintiff
“has failed to establish a timely temporal connection between
either her April 1992 or March 2001 ASCHR complaints and any of the
promotions”37 at issue.

As a result, Plaintiff cannot make out a

prima facie case for retaliation.38

Therefore, Defendants’ Motion

for Summary Judgment on Count III is hereby GRANTED.
E.

Count IV – 42 U.S.C. § 1983.
Plaintiff has also “filed a claim under 42 U.S.C. § 1983

against the individual defendants in their individual and official
capacities.”39

In particular, Plaintiff claims:

35

Id. (citation omitted).

36

Id. at 35-6 (citation and footnote omitted).

37

Id. at 36.

38

“[A]s a matter of law, no inference of retaliation can be
made because of the length of time between the protected activity
and the alleged retaliatory conduct.” Id. (citing Villiarimo, 281
F.3d at 1065).
39

Clerk’s Docket No. 28 at 59 (citation omitted).

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[T]he individual defendants violated § 1983 by: (1) committing sex
discrimination and retaliation in violation of Title VII; (2)
violated the equal protection clause of the 14th Amendment to the
United States Constitution; (3) discriminated against her for
reporting matters of public concern in violation of the First
Amendment of the United States Constitution; and (4) constructively
discharged her.40
1.

Plaintiff’s Title VII Claim.

“Plaintiff does not contend the individual [D]efendants
should be personally liable under Title VII . . . .”41

However,

inasmuch as Defendant Amylon could be considered a “final policy
maker,”42 and there is evidence that Defendant Amylon may have acted
with

“deliberate

indifference”

toward

Plaintiff,43

Defendants’

Motion for Summary Judgment as to Count IV, based on Plaintiff’s
Title

VII

claim(s),

Defendants

Amylon,

is

hereby

Anslinger,

GRANTED
and

with

Sirevog,

40

in

the

to:

(1)

individual

Clerk’s Docket No. 45 at 37.

41

respect

Clerk’s Docket No. 43 at 33.

42

Defendants concede “only Amylon, as the City Manger,
could be considered a final policy maker.” Clerk’s Docket No. 45
at 38 (citation omitted).
43

For example, Defendant Amylon referenced Plaintiff’s
ASCHR filings during her grievance hearings. Clerk’s Docket No. 43
at 58 & Ex. 546. The various briefings are not entirely clear as
to his reason(s) for doing so.
ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 13
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capacities;

(2)

the

Ketchikan

Police

Department44;

and

(3)

Defendants Anslinger and Sirevog, in their official capacities.
Defendants’ motion may have been denied with respect to:
(1) the City of Ketchikan; and (2) Defendant Amylon, in his
official capacity; however, because Plaintiff has not presented
evidence that Defendant Amylon, a final decision maker, knew his
specific conduct violated clearly established rights, Defendants’
Motion for Summary Judgment as to Count IV, based on Plaintiff’s
Title VII claim(s), is hereby GRANTED in its entirety.
2.

Plaintiff’s Fourteenth Amendment Claim.

“To succeed on a § 1983 equal protection claim, . . .
[Plaintiff]

must

discriminatory
intentional.”45

prove

manner

that
and

the

[D]efendants

that

the

discrimination

Plaintiff’s case fails this test.

is no direct evidence of gender animus.

acted

in

a
was

Indeed, there

Consequently, Defendants’

Motion for Summary Judgment as to Count IV, based on Plaintiff’s
Fourteenth Amendment claim, is hereby GRANTED.

44

“[A] separate § 1983 claim cannot be made against a
police department as it is not deemed a legal entity separate from
the City of Ketchikan.” Clerk’s Docket No. 45 at 39 (citing West
By and Through Norris v. Waymire, 114 F.3d 646, 646-47 (7th Cir.
1997)). While the Court recognizes West is not authoritative, it
is persuasive on this point.
45

Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736,
740 (9th Cir. 2000)(citation omitted).
ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 14
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3.

Plaintiff’s First Amendment Claim.

Plaintiff has failed to state a claim under the First
Amendment. According to the Supreme Court in Connick v. Myers, 461
U.S. 138, 147 (1983),
[W]hen an employee speaks not as a citizen
upon matters of public concern, but instead as
an employee upon matters only of a personal
interest,
absent
the
most
unusual
circumstances, a federal court is not the
appropriate forum in which to review the
wisdom of a personnel decision taken by a
public agency allegedly in reaction to the
employee’s behavior.
The

present

case

circumstances.”

does

not

amount

to

the

“most

unusual

[of]

Consequently, Defendants’ Motion for Summary

Judgment as to Count IV, based on Plaintiff’s First Amendment
claim, is hereby GRANTED.
4.
To

Constructive Discharge.
determine

whether

Plaintiff

was

constructively

discharged on the basis of sex, the Court “must find that a
reasonable person in [her] position would have felt that [she] was
forced to quit because of intolerable and discriminatory working
conditions.”46

In doing so, courts have further been directed to

look for “‘aggravating factors,’ such as a ‘continuous pattern of

46

Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir.
1984)(citations omitted)(emphasis added).
ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 15
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discriminatory treatment.’

As a result, the answer turns on the

facts of each case.”47
Whereas here, the Court concludes:
[T]here were aggravating factors and a
continuous pattern: the four missed promotions
in 19 months, the Defendants’ use of
Plaintiff’s transfer out of investigations
against her without considering her recent
record in Patrol and her supervisory scores,
[and] Chief Sirevog’s attempt to have her
supervisory score in her evaluations lowered,48
Defendants’ Motion for Summary Judgment as to Count IV, based on
Plaintiff’s constructive discharge claim, would likely have been
DENIED

were

it

not

for

Plaintiff’s

failure

contractual remedies, before filing the same.49

to

exhaust

her

As a result,

Defendants’ Motion for Summary Judgment as to Count IV, based on
Plaintiff’s constructive discharge claim, is GRANTED.
5.

Qualified Immunity.

Were the Court to rule differently with respect to
Plaintiff’s § 1983 claims, which it does not do, Defendants’ Motion
for Summary Judgment as to Count IV would still be GRANTED because
the Court further concludes Plaintiff has not presented evidence

47

Id. at 1382 (citations omitted).

48

Clerk’s Docket No. 43 at 69 (emphasis in original).

49

As cited by Defendants’ counsel during oral argument on
the issue, “The city personnel rules require; specifically, that
any claim for constructive discharge be submitted to the personnel
board prior to going any further.”
ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 16
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that the decision makers knew their specific conduct violated
clearly established rights.
6.

Punitive Damages.

For reasons more carefully articulated in Defendants’
Reply to Opposition to Motion for Summary Judgment, “there is
simply no evidence of outrageous [conduct] by any of the . . .
[D]efendants in this case.”50

The Court concludes, therefore,

Plaintiff is not entitled to punitive damages.
V.

CONCLUSION
Defendants’ Motion for Summary Judgment (Docket No. 28)

is hereby GRANTED with respect to Counts II through V and DENIED
with respect to Count I.

The individual Defendants, however, are

DISMISSED from Count I.
ENTERED this 5th day of January, 2006.

/S/
RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

50

Clerk’s Docket No. 45 at 47.

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