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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Reynolds-Rogers v. State, Dept. of Health & Social Services (3/8/2019) sp-7340

Reynolds-Rogers v. State, Dept. of Health & Social Services (3/8/2019) sp-7340

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                        

TERRI  REYNOLDS-ROGERS,                                           )  

                                                                  )    Supreme Court No. S-16409  


                                 Appellant,                       )  

                                                                  )    Superior  Court  No.  3AN-14-09825  CI  

           v.                                                     )  


                                                                  )    O P I N I O N  


STATE OF ALASKA,                                                  )  



DEPARTMENT OF HEALTH &                                            )    No. 7340 - March 8, 2019  


SOCIAL SERVICES,                                                  )  


                                 Appellee.                        )  




                      Appeal from the Superior Court of the State of Alaska, Third  


                      Judicial District, Anchorage, Mark Rindner, Judge.  


                      Appearances:             Terri  S.  Reynolds-Rogers,  pro  se,  Palmer,  


                      Appellant. Elizabeth M. Bakalar, Janell M. Hafner, Assistant  


                      Attorneys General, and Jahna Lindemuth, Attorney General,  


                      Juneau, for Appellee.  


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      MAASSEN, Justice.  



                      A  former  employee  of  the  Department  of  Health  and  Social  Services  


(DHSS)  brought  a  wrongful  discharge  suit  against  the  State.                                          At  the  time  of  her  

termination she had four union grievances pending against DHSS, and her union filed  

----------------------- Page 2-----------------------

another based on the termination.                                                               The union settled all five grievances in exchange for                                                                                       

a payment to the employee.                                                       She later sued DHSS for wrongful termination, alleging                                                                                      

both breach of the covenant of good faith and fair dealing and several torts, including                                                                                                                  

retaliatory discharge and failure to accommodate her disabilities.                                                                                                                          The superior court                       

granted DHSS's motion for summary judgment and entered final judgment against the                                                                                                                                                          


                                      We   conclude   that   the   superior   court   was   correct   in   deciding  that   the  

employee's claims were resolved by the settlement of her grievances, were barred by the                                                                                                                                                     

 statute of limitations, or were legally insufficient in light of the undisputed facts.                                                                                                                                                 We  

therefore affirm the superior court's judgment.                                                         

II.                FACTS AND PROCEEDINGS                     

                   A.                 Facts  


                                      1.                Work duties  



                                      Terri Reynolds-Rogers (Rogers                                                                                                                                                             

                                                                                                                                   ) began to work for DHSS as a Health  


Program Manager  I  in August 2006.                                                                               She has a bachelor's degree in  zoology  and  


completed  two  years  of  medical  school.                                                                                         Her  job  duties  with  DHSS  involved  


implementing the Medicaid program:  she began by screening paperwork from nursing  


homes and hospitals related to authorizations for long-term care and was later given  



duties related to the Medicaid Waiver program. 

                   1                  The appellant identifies herself as "Rogers" in her brief, and we follow her                                                                                                                         


                   2                  TheMedicaidWaiverprogram"provide[s]disabledAlaskans within-home  


care services as an alternative to institutionalization."  Radebaugh v. State, Dep't of  


Health & Soc. Servs., Div. of Senior & Disabilities Servs., 397 P.3d 285, 287 (Alaska  



                                                                                                                      -2-                                                                                                             7340

----------------------- Page 3-----------------------


                    Rogers's immediatesupervisor during most ofher employmentwith DHSS  


was  Rita  Walker,  whose  supervisor  was  Leanna  Hunter.                                 At  one  point  Walker's  


supervisor had been Odette Jamieson, who "remain[ed] in the chain of command to the  


end of [Rogers's] service" as Hunter's supervisor.  


                    Forthefirstfewyears Rogers's employment withDHSSwasunremarkable,  


though she described some friction between herself and Walker.  Her first performance  


evaluation,  in  June 2011,  rated  her  overall performance as "mid  acceptable."                                        The  


evaluation set out goals for the following year, including weekly meetings with Walker,  


a "[d]ecrease [in] use of unscheduled leave," cross-training for other positions, showing  


"improvement in acceptance of supervision," and "[c]onsistently follow[ing] chain of  


command." Rogers strongly disagreed with the rating and asserts that she filed a lengthy  



                    Inthesummer of2011 DHSSbegan to changeRogers's work requirements.  


Some changes appear  to be related to the goals in the June 2011 evaluation; these  


included expanding Rogers's duties to encompass training in the Medicaid  Waiver  


review process.  The parties disagreed about why Rogers's duties increased:  Rogers  


asserted that it was retaliation by Walker, while DHSS contended that it was part of an  


effort to cross-train her and make better use of her education.  Rogers points to a tasks  

spreadsheet that she and management developed, which in her opinion shows she was  


being asked to do more than eight hours of work in a seven-and-a-half-hour day.  


                    The record reflects ongoing problems between Rogers and Walker relating  


to a variety of issues: unexplained absences, Rogers's use of her time while at work, the  


waysheprocessedincompletelong-termcareauthorizationrequests, and her willingness  


to accept supervision and follow the chain of command.  


                    2.        Disability accommodations requests  


                    In July 2011 Rogers requested an evaluation of her work station because  

                                                              -3-                                                        7340

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of "increased neck and hand pain, . . . with numbness, tingling and loss of strength in  


both hands." An outside company conducted an ergonomic evaluation of Rogers's work  


station and recommended modifications, some of which DHSS provided.  Rogers was  


later  in  two  car  accidents,  and  her  work  station  was  again  evaluated.                                            One  


recommendation - now a point of contention - was an adjustable desk.  


                    In May 2012, after suffering an attack of Ménière disease which she said  


was triggered by stress, Rogers filed a request for disability accommodation related to  


the disease.  DHSS did not grant the exact accommodations she requested, but it did  


provide  her  with  an  electronic  tablet  to  help  with  the  hearing  impairment  that  is  


sometimes a symptom of the disease.  

                    Rogers also suffered from post-traumatic stress disorder (PTSD), though  


she did not disclose it to her employer until early 2013.  According to Rogers, she had  


no reason to tell DHSS about the condition until problems arose with the rearrangement  


of her office furniture.  She testified that when she returned to work after the Presidents  


Day holiday in February 2013, she found her desk rearranged so that her back was to the  


door; she said that working in this position would trigger her PTSD. She and a coworker  


"reoriented" the desk to face the door. According to Rogers, Walker was displeased and  


told her the desk had to be turned around.  Rogers went to Jamieson, Walker's superior,  


and explained why she could not work with her back to the door; Rogers testified that  


Jamieson "allowed [her] to keep [her] desk properly oriented for [her] safety."   But  


Rogers asked Jamieson not to discuss her PTSD diagnosis with others at DHSS.  


                    Rogers  had  a  disciplinary  suspension  in  March  2013,  and  when  she  


returned to work on April 1 her desk was again oriented with her back to the door.  On  


the door was a notice forbidding the rearrangement of furniture; an email from Hunter  


explained that Rogers's"furnitureconfiguration hadtaken up almosttheentireofficeand  


the second employee [sharing the office] was confined to one corner of the room.  Now  

                                                               -4-                                                         7340

----------------------- Page 5-----------------------


the space is more appropriately split." When Rogers complained to Jamieson, Jamieson  


told her to "work with [her] supervisors on th[is] type[] of request[]."   Hunter and  


Walker learned of Rogers's PTSD diagnosis at this point, and Rogers formally notified  


them of it on April 2, explaining that her "confidentiality [had] already been breached."  


She  was  given  paperwork  to  begin  an  Americans  with  Disabilities  Act  (ADA)  


accommodations request, and DHSS offered to allow her to work in another office in the  


meantime.  In an email to Walker, Rogers declined "the offer of an interim change in  


offices" because the desk in the other office was not adjustable but said she would move  


"if  that  is  still  your  instruction."                   She  submitted  the  ADA  paperwork  for  an  


accommodation  related  to  her  PTSD,  and  on  April  12  DHSS  agreed  to  grant  her  


accommodation request.  


                    3.        Discipline history  


                    Rogers was the subject of progressive discipline a number of times.  She  


was given a Letter of Expectation in March 2008 related to her use of work time, and in  


April 2009 she received a Letter of Warning about inappropriate communication with  


her supervisor. She filed a grievance through her union related to the Letter of Warning,  


contending that the underlying issue was simply "a communications problem" between  


her and Walker.  The grievance was still unresolved when Rogers was fired in 2013.  


                    In November 2011 Rogers was reprimanded in part because she "failed to  


follow specific instructions to not discuss" a disciplinary process "with anyone outside  


of [her] supervisory chain of command or union representation"; she had sent an email  


to the supervisor of another employee who had filed a complaint about her to document  


what she considered to be inappropriate behavior by that employee.  Rogers was given  


another Letter of Warning in February 2012 because of her use of unscheduled leave and  


her  failure  to  follow  instructions,  and  she  filed  a  grievance  about  this  letter.                                    In  


November 2012 and again in March 2013 she was suspended because of difficulties  

                                                               -5-                                                         7340

----------------------- Page 6-----------------------


completing her work, the first time for 5 days and the second for 15 days.  Again, she  


grieved the suspensions through her union.  


                    During the second suspension, staff who were covering Rogers's work  


discovered a large number of incomplete long-term care authorization requests in her  


office  that  had  not  been  reported  to  her  supervisors.                          In  a  later  interview  Rogers  

acknowledged that "[t]here were 153 all together," and she explained she "could have  


finished them but [she] was not allowed to do the facilities' share of the work." She said  


that in the past she had "completed the facilities' share of the work if they were more  


than a couple weeks behind in getting payment" and that she "viewed it as part of [her]  


job - to get long-term care authorization completed whether or not the information was  


provided by the long-term care facility or whether [she] called them to get the correct  


information from them."  This was contrary to established practice; Rogers had been  


instructed before that it was up to the providers to make necessary corrections to their  




                    Rogers was fired on April 12, 2013 - the same day DHSS granted her  


request for accommodation related to her PTSD -following a contentious investigatory  


interview.  Through her union she filed a grievance contesting the termination.  In June  


2013 the union settled all of the grievances, including the other four that were pending  


at the time of her termination:   the union withdrew the grievances in exchange for  


DHSS's agreement to pay Rogers $3,800 and remove a performance evaluation for  


2011-12 from her records.  

          B.        Proceedings  

                    On April 5, 2013, a week before her termination, Rogers filed a complaint  


with the Alaska State Commission on Human Rights (ASCHR). Shortly afterwards she  


filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC),  


                                                               -6-                                                        7340

----------------------- Page 7-----------------------

which investigated thecomplaint,                                        concluded that                 it was unableto establish anyviolations                       

 of the relevant statutes, and in August 2014 gave Rogers a "Right to Sue" letter.                                                                                           

                             Rogers, through counsel, filed suit against DHSS, alleging several causes                                                                      

 of action:             breach of the implied covenant of good faith and fair dealing, failure to                                                                                    

provide               reasonable                  accommodations,                            wrongful                 termination,                   retaliation,                and  

                                                                                            3   DHSS answered and moved for summary  

 discrimination based on disability and age.                                                                                                                          

judgment,  which  the  superior  court  granted.                                                        The  court  observed  that  a  wrongful  


termination claim required proof of either a breach of contract or a tort.  It decided that  


 Rogers's union settlement barred any claim for breach of the covenant of good faith and  


 fair dealing.  It decided that the statute of limitations had run on a claim for failure to  


reasonably accommodate any disabilities except PTSD, and that DHSS had reasonably  


 accommodated that disability.  The court decided that Rogers had established a prima  


 faciecaseof disability discrimination, that DHSShad carried its burden ofdemonstrating  


that it had a legitimate reason for firing her, and that Rogers had failed to show that this  


reason was actually "an impermissible pretext." The court likewise decided that Rogers  


had established a prima facie case of retaliation but that DHSS had shown a legitimate  


reason for her termination which Rogers had not shown to be pretextual.  


                             Rogers, now self-represented, appeals.  




                             "We review a grant of summary judgment de novo,"4   "affirming if the  


record presents no genuine issue of material fact and if the movant is entitled to judgment  


               3             Rogers later conceded that she did not have an age-related discrimination                                                     


               4             Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 757 (Alaska 2008).  


                                                                                          -7-                                                                                 7340

----------------------- Page 8-----------------------

as a matter of law."               5  

IV.	        DISCUSSION  


            A.	         The Superior Court Did Not Err In Granting Summary Judgment On  


                        Rogers's Claim For Violation Of The Covenant Of Good Faith And  


                        Fair Dealing.  


                        The superior court based its denial of Rogers's claim for breach of the  


covenant of good faith and fair dealing on her union's settlement of the five grievances  


in exchange for a monetary payment to Rogers.  The court reasoned that breach of the  


covenant  is  a  contract-based  claim;  that  the  contract  at  issue  was  "the  Collective  


Bargaining Agreement between the State and the Alaska State Employees Association";  


and that claims based on the covenant therefore had to be pursued by the contractual  


grievance policy, which had finally resolved them by settlement.  


                        We see no error in this analysis.  A cause of action based on the covenant  

                                                                                       6   An employee represented by a union  


of good faith and fair dealing is a contract claim. 

who wishes to bring an employment-related contract claim against the employer must  


first exhaust the administrative remedies available through the union or showgood cause  


why exhaustion should be excused.7   Rogers and her union settled her grievances, and  


there were therefore no further administrative remedies to exhaust.  But her acceptance  


of the settlement bars litigation of the settled contract disputes.8  


            5	          Hagen v. Strobel               , 353 P.3d 799, 802 (Alaska 2015).                  

            6           See Holland v. Union Oil Co. of Cal.                              , 993 P.2d 1026, 1032 (Alaska 1999)                      


("This court has 'recognized a covenant of good faith and fair dealing in all at-will  

employment contracts.' " (quoting                               Luedtke v. Nabors Alaska Drilling, Inc.                                   , 834 P.2d     


 1220, 1223 (Alaska 1992))).  

            7           See Wilson v. Municipality of Anchorage , 977 P.2d 713, 724 (Alaska 1999).  


            8           See Plumber  v.  Univ. of Alaska Anchorage , 936 P.2d  163, 168 (Alaska  



                                                                            -8-	                                                                   7340

----------------------- Page 9-----------------------

                                          Rogers   argues,   however,   that   the   settlement   agreement   resolving   her  

grievancesshouldberescindedfor several                                                                                           reasons, includingfraud, "misunderstanding,"                                  

breach of fiduciary duty by her union, lack of consideration, and unconscionability. She                                                                                                                                                                           

 appears to argue that the union representative misled her about what she would be giving                                                                                                                                                                   

up by agreeing to the settlement (fraud or misrepresentation) or that she misunderstood                                                                                                                                          

what the union representative was telling her (unilateral mistake).  In other words, she     

 argues that the fatal flaws in the settlement agreement were due not to DHSS but to her                                                                                                                                                                             

union representation.                                                Her claim could be characterized as a "hybrid claim," involving                                                                                                             

not only a claim against the employer for breach of the collective bargaining agreement                                                                                                                                                        


but also one against the union for breach of its duty of fair representation.                                                                                                                                                                

                                          But Rogers did not argue in the superior court that the settlement agreement  


was invalid and should be set aside; her only argument about the grievance process  


concerned whether she was required to exhaust her remedies.  A claim for breach of the  


duty of fair representation generally raises issues of fact about the union's conduct, none  


                                                                                                                                                                    10       In the absence of any argument  

of which were litigated in the trial court in this case.                                                                                                                                                                                          


                     8                    (...continued)  

 1997)  (holding  that  settlement  of  one  claim  barred  employee  from  "relitigating  to  obtain  

 a  better  settlement").  

                     9                    See  Bernard v. Alaska  Airlines,  Inc.,   367   P.3d   1156,   1159   n.5   (Alaska  


                     10                   See   Cameron   v.   Chang-Craft,   251   P.3d   1008,   1018   (Alaska   2011)   ("A  

union  breaches  its  duty  of  fair  representation  'only  when  [the  union's]  conduct  toward  

 a  member  of  the  collective  bargaining  unit  is  arbitrary,  discriminatory,  or  in  bad  faith.'  "  

 (alteration  in  original)  (quoting  Schaub  v.  K&L  Distribs.,  Inc.,  115  P.3d 555,  562  (Alaska  

2005))),  disavowed  in  part  on  other  grounds  by   Christensen  v.  Alaska  Sales   &  Serv.,  

Inc.,  335  P.3d  514,  520  n.49  (Alaska  2014);  Rollins  v.  Cmty.  Hosp.  of  San  Bernardino,  

 839   F.3d   1181,   1186-88   (9th   Cir.   2016)   (holding  there   were  jury   questions   about  


                                                                                                                                    -9-                                                                                                                         7340

----------------------- Page 10-----------------------

why the settlement agreement should be set aside, the superior court did not err when it                                                                       

relied on the settlement to bar her contractual claim for breach of the covenant of good                                                                


faith and fair dealing.                      

            B.	          The   Superior   Court   Correctly   Decided   That   The   Statute   Of  


                         Limitations Barred All But One Of Rogers's Disability Discrimination  



                         The superior court decided that the statute of limitations barred disability  


discrimination claims related to DHSS's actions prior to October 2012.  It relied on a  


regulation requiring that a complaint alleging a discriminatory act be filed with the  


Alaska State Commission on Human Rights within 180 days of the act,12 concluding that  


"[a]ny acts occurring more than 180 days before the ASCHR complaint [were] . . .  


untimely." Because Rogers made her complaint to the Commission on April 5, 2013, the  


court concluded that causes of action based on "any acts occurring before October 7,  


2012 [were] . . . untimely filed."  It concluded that causes of action related to acts prior  


to October 23, 2012 - two years before she filed her complaint in superior court -  


were barred in any event because of the two-year statute of limitations on tort actions.  


Under this ruling, the only allegedly discriminatory acts not barred by the statute of  


limitations were those related to Rogers's PTSD.  


             10          (...continued)  


whether union acted arbitrarily and "in a perfunctory manner" when handling plaintiff's  


grievance); Addington v. US Airline Pilots Ass'n , 791 F.3d 967, 982 (9th Cir. 2015)  


("Whether a union's conduct amounted to a breach of its duty of fair representation  


presents a mixed question of law and fact . . . .").  

             11          Ivy v. Calais Co., 397 P.3d 267, 275 (Alaska 2017) ("An argument is  


ordinarily not preserved for appeal if it was not raised below, or if it was only raised after  


the party filed a motion for reconsideration.").  


             12          6 Alaska Administrative Code (AAC) 30.230 (2014).  


                                                                            -10-	                                                                      7340

----------------------- Page 11-----------------------

                              Rogers contends on appeal that the statute of limitations on all her claims                                                                        

should have been equitably tolled because she was pursuing her union                                                                                                  grievances.   

Again, however, she did not make this argument in the superior court, as DHSS points                                                                                              

out.  While we can in limited circumstances consider issues raised for the first time on                                                                                       

                13    those  circumstances  are  not  met  here  because  equitable  tolling  requires  


consideration of prejudice to the defendant, which is ultimately a factual issue.14                                                                                                   The  


superior court made no findings about prejudice. Because Rogers did not raise equitable  


tolling in the superior court, that argument has been waived,15  and she offers no other  


argument of error on this point.   We therefore conclude that the superior court was  


correct in deciding thatthestatuteoflimitationsbarred Rogers's disability discrimination  


claims other than the one related to her PTSD.  


               C.	            The Superior Court Did Not Err In Granting Summary Judgment To  


                              DHSS On The Claim For Failure To Accommodate Rogers's PTSD.  


                              Rogers argues that DHSS failed to accommodate her PTSD - and in fact  


purposely acted to trigger it - by twice rearranging her office furniture so that her back  


was to  the door.                         DHSS  counters that once it became aware of Rogers's need  for  


accommodation related to this condition it promptly engaged in an interactive process  


with her, thus fulfilling its obligations under the ADA.  


               13             See Radebaugh v. State, Dep't of Health & Soc. Servs., Div. of Senior &                                                                                      

Disabilities Servs.                      , 397 P.3d 285, 292 (Alaska 2017) (setting out circumstances when                                                                         

issue not raised below may be considered on appeal).                                                 

               14             See Irby v. Fairbanks Gold Mining, Inc., 203 P.3d 1138, 1142-43 (Alaska  


2009) (setting out test for equitable tolling and applying it when raised on appeal for the  


first time because factfinder had considered prejudice in context of another equitable  



               15             See, e.g., Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996)  


(holding that argument not presented in superior court is waived).  


                                                                                           -11-	                                                                                    7340

----------------------- Page 12-----------------------

                     "Federal courts have held that the ADA requires an employer to 'engage   

with    the    employee    in    an    "interactive    process"    to    determine    the    appropriate  


accommodationunderthecircumstances' onceit is awareoftheemployee's disability."                                                             


It is undisputed that Rogers had not told any of her superiors that she suffered from  


PTSD before February 2013, when she told Jamieson that she had to work facing the  


door and explained why.   Jamieson allowed this accommodation once Rogers and a  


coworker had moved the desk to where Rogers wanted it.  It thus appears that DHSS  


immediately accommodated the disability as soon as Rogers made Jamieson aware of it.  


But Rogers concedes that she kept her PTSD diagnosis from Walker, her immediate  


supervisor; she testified at her deposition that she asked Jamieson not to "spread this  


around" to others at DHSS because it was "private."  


                     Rogers claims that Walker acted intentionally to trigger her PTSD when in  


April 2013 Walker again oriented the desk so that Rogers's back was to the door, but she  


offers no evidence that Walker was aware of the PTSD diagnosis at that time. The notes  


from Rogers's interview with the EEOC indicate that when Rogers returned in April to  


find the desk oriented so she would have to work with her back to the door, she sent an  


email to another supervisor informing her of the PTSD and seeking permission to leave  


for the day because of the stress involved.  According to Rogers, the PTSD diagnosis  


was disclosed to Hunter and Walker at that time. No evidence contradicts Rogers's own  


assertion that Walker learned of her PTSD only after the desk was reoriented the second  


time, and this time line is consistent with emails from Rogers and DHSS staff as well as  


Hunter's deposition testimony.  



                     Smith v. Anchorage Sch. Dist., 240 P.3d 834, 843 (Alaska 2010) (quoting  


EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005)).  

                                                                  -12-                                                                7340  

----------------------- Page 13-----------------------

                                   DHSS did not immediately agree to reorient the desk in April, but after                                                                                                           

Hunter and Walker were made aware of the diagnosis DHSS began the interactive                                                                                                                        

process required by federal law.                                                       DHSS gave ADA forms to Rogers and in an email                                                                               

dated    April    12    agreed    to    accommodate    her.      In    short,    DHSS    agreed  to  the  

accommodation Rogers demanded less than two weeks after she advised her direct                                                                                                                                    

supervisors of her disability and need for accommodation.                                                    

                                   Federal courts have decided that similar time lapses in accommodating                                                                               

ADA requests are reasonable as a matter of law.                                                                              For example, in                           Kintz v. United Parcel                   

Service, Inc.                   , the court decided that a "delay of a mere 15 days is not unreasonable under                                                                                                      

                             17      Another federal court decided that a 17-day delay was insufficient as a  

the ADA."                                                                                                                                                                                                                     

matter of law to support a failure to accommodate claim.18  


                                   Because DHSS engaged in the interactive process required by the ADA  


once it was informed of Rogers's PTSD and her need for accommodation, and because  


it promptly granted her accommodation, summary judgment for DHSS was proper on  


the claim for failure to accommodate her PTSD.  


                 D.	               The Superior Court Did Not Err In Granting Summary Judgment On  


                                   The Disability Discrimination Claim.  


                                   To establish a prima facie case for a disability discrimination claim under  


AS 18.80.220, a plaintiff must show the following:  


                                   (1) that he or she is an individual who has a disability within  


                                   the meaning of the statute; (2) that he or she could perform  


                                   the essential functions of the position he or she holds (with or  


                  17               766 F. Supp. 2d 1245, 1257 (M.D. Ala. 2011).                                                             

                  18              Marks v. Wash. Wholesale Liquor Co., 253 F. Supp. 3d 312, 326 (D.D.C.  


2017);  see also Keen v. Teva Sales & Mktg., Inc.                                                                                , 303 F. Supp. 3d 690, 730 (N.D. Ill.                                                    

2018) (granting summary judgment to employer that returned plaintiff to work with  


accommodations two weeks later than plaintiff requested).                                                                   

                                                                                                           -13-	                                                                                                    7340

----------------------- Page 14-----------------------

                        without reasonable accommodation); and (3) that he or she                                            

                        has   suffered   an   otherwise   adverse   employment   decision  

                        because of the disability.                  [19]  

                        This test is derived from the burden-shifting analysis adopted by the U.S.  


 Supreme Court in employment discrimination cases brought under Title VII of the Civil  


Rights Act of 1964.20   If the employee can establish a prima facie case, "the burden shifts  


to the employer to articulate legitimate, nondiscriminatory reasons for the employment  


 action."21          If  the  employer  meets  this  burden,  the  employee  must  then  show  "that  


discriminatory reasons more likely motivated the employer."22   "Because a complainant  


 can  show  pretext  either  directly  or  indirectly,  a  variety  of  factors  can  evidence  a  


pretextual justification."23  


                        Here the superior court determined on summary judgment that Rogers had  


met her initial burden of demonstrating a genuine issue of material fact as to all three  


 elements. On appeal DHSS challenges this determination, arguing that no facts support  


 a finding that Rogers could perform the essential functions of her position24  and that the  


            19          Smith, 240         P.3d at 843 (quoting                Moody-Herrerav. State,Dep't of Nat. Res.                                 ,  

 967 P.2d 79, 88 (Alaska 1998)).             

            20          Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 430 (Alaska 1995) (citing  


Alaska State Comm'n for Human Rights v. Yellow Cab , 611 P.2d 487, 490 (Alaska  



            21          Raad v. Alaska State Comm'n for Human Rights, 86 P.3d 899, 905 (Alaska  



            22          Id.  

            23          Id.  

            24          Afederalregulation defines"essentialfunctions"to mean "thefundamental


job duties of the employment position the individual with a disability holds or desires"



                                                                         -14-                                                                    7340

----------------------- Page 15-----------------------

 trial court put too much weight on the temporal proximity between Rogers's request for                                                                                                                     

 accommodation of her PTSD and her firing.                                                                    

                                 The   superior   court   did   not   have   before   it   on   summary   judgment   any  

 evidence regarding the essential functions of Rogers's position; neither Rogers's initial                                                                                                           

job description nor the revised job description was included in the record.                                                                                                              Given the   

 dearth of information about the specific functions of Rogers's job, the superior court did                                                                                                                

 not   err   in   finding   that   Rogers's   "mid   acceptable"   performance   evaluation   in   2011  

 adequately supported a prima facie case that she was able to perform the essential                                                                                                          

 functions of her position.                                      

                                 Nor did the court err by using temporal proximity to establish the third                                                                                              

                25   Rogers suffered at least two adverse employment actions in close proximity to  


 her attempts to rearrange her office:  the February repositioning of the desk was one of  


 the issues in a February investigatory interview that resulted in the 15-day suspension  


 in March, and she was fired within two weeks of her return to the office on April 1 and  


 her request at that time for accommodation of her PTSD.  


                                 But we also agree with the superior court that DHSS met its burden of  


 demonstrating the absence of any genuine issue of material fact as to whether it had  


 legitimate reasons for firing Rogers.  One legitimate reason was the discovery of many  


                 24              (...continued)  


but "does not include the marginal functions of the position."  29 C.F.R. § 1630.2(n)(1)  



                 25              SeeVECO,Inc. v. Rosebrock,970 P.2d906,919(Alaska1999)("Causation  


 sufficient to establish a prima facie case of unlawful retaliation may be inferred from the  


proximity in time between the protected action and the allegedly retaliatory discharge."  


 (quoting Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986))).   The  


 analysis of a disability discrimination claim is similar to that for an unlawful retaliation  


 claim.  See id. at 918.  


                                                                                                     -15-                                                                                              7340

----------------------- Page 16-----------------------

pending requests for long-term care authorizations in various stages of the approval                                                                                                                                                             

process that Rogers had apparently not disclosed to her supervisors. The record supports                                                                                                                                                           

other reasons as well: Rogers appears to have disregarded instructions about processing                                                                                                                                                     

incompleteapplications;shewent outsideher chain ofcommanddespiteadmonitions not                                                                                                                                                                                     

to do so; and she disregarded directives not to discuss certain personnel issues with                                                                                                                                                                          


                                          Because DHSS met its burden of showing it had legitimate reasons for                                                                                                                                                      

firing Rogers, the burden shifted to her to show that these reasons were pretextual.                                                                                                                                                                                             

Federal courts have held that "the plaintiff must produce 'specific, substantial evidence                                                                                                                                                         

of pretext,' " or, put another way, "must tender a genuine issue of material fact as to                                                                                                                                                                                

                                                                                                                                              26       The superior court decided that DHSS  

pretext in order to avoid summary judgment."                                                                                                                                                                                                             

was  entitled  to  summary  judgment  because  Rogers  provided  no  evidence  she  was  


terminated because of her disability.   Although Rogers made many allegations that  


Walker and others in DHSS acted deliberately to fire her or to overwhelm her with work,  


she offered no specific evidence that her firing was motivated by her PTSD and request  


for accommodation of that disability.27                                                                                        We agree with the superior court that Rogers  


failed to present evidence sufficient to show a  genuine issue of material fact as to  


whether DHSS's reasons for firing her were pretextual.  


                     E.	                  The Superior Court Did Not Err In Granting Summary Judgment To  


                                          DHSS On The Retaliatory Discharge Claim.  


                                          The final question on appeal is whether the superior court erred in granting  


                     26	                  Wallis v. J.R. Simplot Co.                                                    , 26 F.3d 885, 890 (9th Cir. 1994) (quoting                                                                                       Steckl  

v.  Motorola, Inc.                                   , 703 F.2d 392, 393 (9th Cir. 1983)).                                                      

                     27                   In her reply brief Rogers cites documents and depositions that were not  


filed with the superior court and thus are not part of the record on appeal.  See Alaska R.  


App. P. 210(a) (limiting record on appeal to "original papers and exhibits filed in the  


trial court" (emphasis added)).  


                                                                                                                                 -16-	                                                                                                                        7340

----------------------- Page 17-----------------------

summary judgment to DHSS on Rogers's retaliation claim.                                                                   The analysis for a claim of                        

retaliation is similar to that used in a discrimination claim:                                                            

                           To establish a prima facie case of discriminatory retaliation,                                       

                           a    complainant   must   establish   that   (1)   the   complainant  

                           engaged               in       a      protected               activity             (e.g.,         opposed               a  

                           discriminatory   practice);   (2)   the   complainant   suffered   an  

                           adverse employment action; and (3) there was a causal link                                                         

                           between the protected activity and the employer's action.                                                            [28]  

"Causation may be inferred from the proximity in time between the protected action and  


the allegedly retaliatory action."29   The superior court found that Rogers met her burden  


of  showing  a  prima  facie  case.                                    The  court  decided  that  her  union  grievances  and  


discrimination complaint to ASCHR were protected activities and that she suffered the  


adverse employment action of being fired. It then decided that she had satisfied the final  


element - the causal link - because of temporal proximity.  


                           DHSS challenges this threshold determination, arguing that there is no  


evidence to support a causal link between the protected activity and the employer's  


actions. It contends that the timing of the ADA accommodation and Rogers's firing was  


"pure coincidence" and cannot serve as a basis for meeting the third element.  


                           We again agree with the superior court that Rogers made a prima facie case  


of retaliation.                 She was disciplined  shortly  after  she repositioned  her  desk in  mid- 


February, despite explaining that Jamieson had authorized it.  She had multiple union  


grievances pending at the time of her dismissal, including one related to the February  


2013 discipline, and she was fired shortly after she filed the request for accommodation  


of her PTSD.  


              28           Raad,  86  P.3d  at  905.  

              29           Id.  

                                                                                    -17-                                                                                     7340  

----------------------- Page 18-----------------------

                        Once the plaintiff claiming retaliatory discharge has established a prima                                                  

facie case, "the burden in a pretext case shifts to the employer to show a legitimate, non-                                                           

                                                                  30   As set out above, DHSS was able to demonstrate  

retaliatory reason for the discharge."                                                                                                  

the absence of a genuine issue of material fact as to whether it had legitimate reasons for  


firing Rogers.  The burden then shifted to Rogers "to show that discriminatory reasons  


more likely motivated the employer."31   She argued in the superior court that she met the  


burden through temporal proximity and through evidence that her supervisors were  


aware of the grievances.  However, she was "required . . . to offer something more than  


'unsupported  assumptions  and  speculation'  "  in  order  to  create  a  genuine  issue  of  


material fact.32  


                        On  appeal  Rogers  offers  little  in  the  way  of  evidence  to  support  her  


contentions.  For example, she asserts that Walker purposely triggered her PTSD by  


repositioning her desk during her suspension, butRogers'sown statementsindicated that  


Walker found out about the PTSD diagnosis only after Rogers returned to work. No fact  


that Rogers points to substantiates her claim that DHSS retaliated against her for making  


the ADA request related to her PTSD or for grieving her concerns through the union  



                        Because DHSS showed it had a legitimate reason for terminating Rogers's  


employment and Rogers failed to provide evidence sufficient to create a genuine issue  


of material fact as to whether that reason was pretextual, the superior court did not err  


in granting DHSS summary judgment on the retaliatory discharge claim.  


            30          Mahan  v.  Arctic  Catering,  Inc.,   133  P.3d  655,  660  (Alaska  2006).  

            31          Raad,  86  P.3d  at  905.  

            32          Mahan,   133  P.3d  at  661  (quoting  French  v.  Jadon, Inc.,  911  P.2d  20,  25  

(Alaska   1996)).  

                                                                           -18-                                                                     7340

----------------------- Page 19-----------------------

V.                     CONCLUSION  

                                             We AFFIRM the superior court's judgment.                                                                             

                                                                                                                                                      -19-                                                                                                                          7340

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