Miller v. Haugrud

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
MARY A. MILLER, )
)
Plaintiff, ) 1:16-CV-00002 JWS
)
vs. ) ORDER AND OPINION
)
RYAN ZINKE, Secretary for the ) [Re: Motion at docket 37]
DEPARTMENT OF THE INTERIOR, )
)
Defendant. )
)
I. MOTION PRESENTED
At docket 37, Defendant Ryan Zinke, Secretary of the Department of the Interior
(Defendant), moves for summary judgment as to the federal employment discrimination
lawsuit filed pursuant to 42 U.S.C. § 2000e-16(a) by Plaintiff Mary A. Miller (Miller).
Miller opposes the motion at docket 45. Defendant replies at docket 46. Oral argument
was not requested.
II. BACKGROUND
Miller is a lifelong resident of Sitka, Alaska and is an Alaska Native. In March of
2008 she was hired by the National Park Service (NPS or Agency) to be the
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Superintendent of Sitka National Historical Park (SNHP) in Sitka, Alaska. The position
was graded at GS-13. In October of 2008 and in October of 2009, Miller received
positive performance reviews, with her supervisors rating her performance as fully
successful. In early 2010, however, NPS Alaska Regional Director Sue Masica
(Masica) and NPS Alaska Regional Deputy Director Victor Knox (Knox) informed Miller
that a management review of SNHP was planned. The Director for the NPS Pacific
West Region, Frank Hays, led the review in February of 2010. The review was followed
by a recommendation that Miller be reassigned from her supervisory position at SNHP
to an Alaska Native liaison position in Anchorage. At that time, the position had not yet
been created, but it had been discussed as a potential NPS position as early as 2009.
In March, shortly after Hays’s review, NPS management finished the liaison job
description, making the classification correct for Miller’s reassignment by editing the
work description so that it would qualify as a Grade GS-13 position.
On April 27, 2010, Knox offered Miller a voluntary reassignment to the new
Alaska Native liaison position, which would be located in Anchorage rather than Sitka.
Miller declined, and Knox then provided Miller with a memorandum directing her
reassignment. It advised her that she had ten days to consider the reassignment and
that if she declined the position “removal procedures will be taken.” Knox later agreed
to extend the deadline for Miller to accept her reassignment until May 14, 2010.
Miller declined the reassignment on May 14, 2010. On May 19, Knox issued
Miller a notice of proposed removal based on her failure to accept a management-
directed reassignment. Miller responded to the proposal by attempting to negotiate the
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reassignment, but the removal was finalized by Masica on July 26, 2010, with an
effective date of August 6, 2010.
Miller pursued a mixed-case administrative action to challenge the removal. A
mixed-case action is one where a federal employee challenges an adverse employment
action that can be reviewed by the Merit Systems Protection Board (MSPB) under the
Civil Service Reform Act (CSRA) and also argues that the action was discriminatory.1
Under the governing regulations, Miller, as a federal employee, had two options for
having a mixed-case action reviewed: 1) she could file an EEO mixed-case complaint
with the agency, alleging employment discrimination that was “related to or stemming
from” a personnel action that can be reviewed by the MSPB or 2) she could skip the
agency process and file a mixed-case appeal with the MSPB, alleging that the action
“was effected, in whole or in part, because of discrimination.”2 Miller opted to file an
EEO complaint with the agency presumably because, in addition to challenging her
removal, she wanted to challenge other acts of discrimination not related to the removal
and therefore not within the MSPB board jurisdiction. As to her removal, an action
within the MSPB board’s jurisdiction, she argued that it was based on her refusal to
accept a discriminatory reassignment. After there was no decision from the agency
within 120 days, in accordance with the applicable regulations,3 she opted to forego the
agency review of the removal and filed a mixed-case appeal with the MSPB to
1Kloeckner v. Solis, 568 U.S. 41, 44-45 (2012).
2Id. at 45; see also 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.154.
35 C.F.R. § 1201.154(b)(2); 29 C.F.R. § 1614.302(d)(1)(i).
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challenge the propriety of the removal under the CSRA and to allege that the removal
was effected by race, gender, and disability discrimination. Ultimately, the removal was
affirmed at the administrative level.
Miller then filed a complaint in this court as provided for in the applicable statutes
and regulations. In her complaint, she does not challenge the MSPB’s decision as to
the propriety of her removal under the Civil Service Reform Act, which would have been
subject to a deferential review on the administrative record.4 She does, however,
challenge the MSPB decision as to her assertion that the removal was based on
discrimination and seeks a trial de novo on the issue.5 Specifically, she brings two
claims under 42 U.S.C. § 2000e-16(a): (1) Defendant “intentionally and unlawfully
removed [her] from her position as SNHP Superintendent because of her gender, in
violation of Title VII of the Civil Rights Act of 1964" and (2) Defendant “intentionally and
unlawfully removed [her] from her position as SNHP Superintendent because of her
race, in violation of Title VII of the Civil Rights Act.”6
Defendant filed this motion for summary judgment. In the motion, Defendant
argues that under Title VII case law, Miller’s claims actually challenge two discrete
agency actions: the management-directed reassignment and the removal. It asserts
that Miller opted to challenge her reassignment and removal with the agency through
the EEO complaint process and therefore had to comply with all deadlines set forth in
4Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir. 1993); 5 U.S.C. § 7703(c).
5Id.
6Doc. 17 at pp. 6-7.
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the EEOC regulations. It asserts that Miller did not timely pursue informal review of the
first discrete act—the reassignment— with the agency; therefore, Defendant argues
that any claim relying on discriminatory reassignment is now time-barred in this court.
As to Miller’s claim that her removal itself was discriminatory, Defendant argues that
Miller has no viable claim because she cannot “bootstrap” her untimely claim regarding
her reassignment to her termination. That is, Defendant asserts that the allegedly
discriminatory nature of the reassignment cannot form the basis of her claim that her
removal from NPS service was based on racial discrimination. It also contends she
does not have sufficient evidence of discrimination to withstand summary judgment.
The court notes that both parties only discuss Miller’s claim based on race.
There is nothing in Defendant’s summary judgment motion discussing her gender
discrimination claim. Indeed, in her response brief, Miller describes her complaint as
alleging only that she was intentionally and unlawfully removed from her position with
NPS because of her race.7 For this reason, the court concludes that Miller has
abandoned her gender discrimination claim and will only address the race-related claim.
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”8 The
materiality requirement ensures that “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
7Doc. 45 at p. 7.
8Fed. R. Civ. P. 56(a).
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judgment.”9 Ultimately, “summary judgment will not lie if the . . . evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”10 However, summary
judgment is mandated “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.”11
The moving party has the burden of showing that there is no genuine dispute as
to any material fact.12 Where the nonmoving party will bear the burden of proof at trial
on a dispositive issue, the moving party need not present evidence to show that
summary judgment is warranted; it need only point out the lack of any genuine dispute
as to material fact.13 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.14 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.15 However, the non-moving party may not rest upon mere allegations or
denials but must show that there is sufficient evidence supporting the claimed factual
9Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
10Id.
11Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
12Id. at 323.
13Id. at 323-25.
14Anderson, 477 U.S. at 248-49.
15Id. at 255.
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dispute to require a fact-finder to resolve the parties’ differing versions of the truth at
trial.16
IV. DISCUSSION
A. Timeliness
Title VII claims brought by federal employees are subject to administrative
exhaustion requirements and time limitations.17 The Civil Service Reform Act (CSRA)
provides the framework for the administrative review of personnel actions taken against
federal employees. “If (but only if) the [personnel] action is particularly
serious—involving, for example, a removal from employment or a reduction in grade or
pay—the affected employee has a right to appeal the agency’s decision to the MSPB.”18
The appeal can simply challenge the propriety of the action under the CSRA, but it can
also challenge the action as discriminatory in violation of other federal statutes, such as
Title VII.19 When an employee challenges a personnel action that is serious enough to
fall within the MSPB’s jurisdiction and alleges that the action was related to
discrimination or effected in whole or in part because of discrimination, she has brought
a mixed case.20 Miller’s attempt to challenge her removal for refusal to accept the
16Id. at 248-49.
17Brown v. Gen. Servs. Admin., 425 U.S. 820, 829-33 (1976) (discussing § 717 of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and noting that it proscribes federal
employment discrimination and establishes an administrative and judicial enforcement system).
18Kloeckner v. Solis, 568 U.S. 41, 44 (2012).
19Id.
20See 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.154
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reassignment has an eight-year procedural history of being administratively reviewed as
a mixed case.
A federal employee bringing a mixed case has options as to how to have her
case reviewed. “She may first file a discrimination complaint with the agency itself,
much as an employee challenging a personnel practice not appealable to the MSPB
could do.”21 In such a situation, the EEOC’s procedures for challenging discriminatory
agency action apply.22 Those procedures are set forth in 29 C.F.R. §§ 1614.101-110
and include the requirement that the employee engage in pre-complaint processing.23
The employee “must initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of personnel action, within 45 days of
the effective date of the action.”24 After that, the formal complaint and investigation
process can begin. If the agency finds no discrimination, the employee may appeal to
the MSPB or forego further administrative review and sue the agency for discrimination
in district court.25 “Alternatively, the employee may initiate the process by bringing her
case directly to the MSPB, forgoing the agency’s own system of evaluating
discrimination charges.”26 If the MSPB affirms the action, the employee can seek
21Kloeckner, 568 U.S. at 45.
2229 C.F.R. § 1614.302(d).
2329 C.F.R. § 1614.105(a)(1).
24Kloeckner, 568 U.S. at 45.
25Id.
26Id.
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additional administrative review with the EEOC or can seek judicial review in district
court.27
Here, as noted above, Miller initially filed a mixed-case EEO complaint with the
Agency rather than a mixed-case appeal with the MSPB. She did so on August 30,
2010, and alleged, among other things not relevant here, that her removal from NPS
employment, effective August 6, 2010, was based on her refusal to accept a
reassignment that was determined by her race. By the time she had filed the EEO
complaint, she had already gone through the informal counseling option, knowing that
her proposed termination had already happened and was being reviewed by upper
management. The complaint was processed and investigated. However, no decision
was issued within 120 days. Under the applicable regulations, she was therefore
allowed to switch over to the alternative MSPB mixed case option.28 In her mixed-case
appeal, she challenged the propriety of the removal under the CSRA and alleged that it
was based on her failure to accept the discriminatory reassignment. Years later, after a
hearing with and decision by an administrative law judge and appeals to the MSPB and
the Federal Circuit, Miller’s removal was ultimately upheld as proper.
She then filed the current discrimination lawsuit, challenging as discriminatory
her removal for failure to accept the reassignment.29 Defendant argues that in this de
27Id.
2829 C.F.R. § 1614.302(d)(i); 5 C.F.R. § 1201.154(b)(2).
29To the extent Defendant asserts that Miller is expressly pursuing a stand-alone
challenge to the reassignment and a stand-alone challenge to her removal, the court disagrees.
Her complaint challenges the removal but argues that it was discriminatory because it was
based on her failure to accept a discriminatory reassignment.
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novo Title VII case the removal and the reassignment are distinct agency actions and
must be reviewed as such. Therefore, Defendant argues that Miller must demonstrate
timely administrative review of both actions. In support, it relies on National R.R.
Passenger Corp. v. Morgan.30 In Morgan, the Supreme Court held that discrete
discriminatory acts—such as termination and denial of transfer—are not actionable if
time barred, even when they are related to acts alleged in timely filed charges.
If the court were to look only at the reassignment, the record supports a finding
that Miller did not timely pursue administrative review of that action. A reassignment
alone is not an agency action that the MSPB can review. Therefore, to challenge the
reassignment apart from the removal, Miller would have had to follow the procedures
set forth in the EEOC regulations, and, as noted above, those regulations require that a
federal employee seek informal counseling within 45 days of the effective date of the
challenged personnel action. Miller first sought informal counseling on June 29, 2010.31
Therefore, she can not challenge actions that took effect before May 15, 2010. There
is some question as to when exactly the reassignment took effect, but based on the
record provided, by May 5, 2010, when the new superintendent had started at SNHP,
Miller’s reassignment from SNHP had taken effect.
30536 U.S. 101 (2002).
31The court recognizes that Miller appears to dispute the date of first contact and alleges
that the first contact was made June 28, 2010. However, her sworn deposition states that she
met with the counselor on June 29, 2010. That date is confirmed by the administrative record.
Miller points to an email she wrote that says she made contact with the counselor on June 28,
2010, but there is no supporting documentation on the record to contradict her sworn testimony.
In any event, the court finds that the one-day difference is not determinative here.
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The court, however, does not agree that Morgan requires the court to consider
Miller’s challenge to her removal for failure to accept a discriminatory reassignment as
untimely because of her failure to challenge the reassignment separately at the
administrative level. Unlike the situation in Morgan, Miller was a federal employee and
filed her Title VII claim pursuant to 42 U.S.C. § 2000e-16 after an eight-year
administrative process that followed the mixed-case procedural regulations. As noted
by the Supreme Court, “[t]he CSRA and regulations of the MSPB and [EEOC] set out
special procedures to govern such a case—different from those used when the
employee either challenges a serious personnel action under the CSRA alone or
attacks a less serious action as discriminatory.”32 Those special procedures allow a
federal employee to challenge a more serious personnel action, like termination, as a
mixed-case if it is “related to” employment discrimination or “effected, in whole or in
part, because of discrimination” or if the challenge “rais[es] issues of prohibited
discrimination in connection with a matter otherwise appealable to the [MSPB].”33 That
is to say, the regulations allowed Miller to challenge her removal as inextricably linked
to her allegedly discriminatory reassignment. The court is hard-pressed to conclude that
her challenge to the removal based upon circumstances involving the reassignment,
while proper and timely under the regulations, is untimely for purposes of this Title VII
action.
32Kloeckner, 568 U.S. at 44-45.
3329 C.F.R. § 1614.302(a)(1), (2); 5 C.F.R. § 1201.154.
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Defendant acknowledges that Miller’s case was processed as a mixed-case
action, but believes that is of no consequence because even under the mixed case
regulations, Miller was untimely. It asserts that Miller opted to challenge her mixed-
case complaint through the EEO complaint process, not the MSPB appeal process, and
therefore had to comply with the deadlines set forth in the federal employee EEOC
regulations. Those regulations require informal counseling within 45 days of the
effective date of the allegedly discriminatory action. It then argues that the clock started
running on the effective date of the first discrete act, which was the reassignment, not
the removal. As discussed above, she did not contact the counselor within 45 days of
the reassignment. However, Defendant provides no authority to suggest that when an
employee has a mixed case—that is, one seeking review of a serious agency action
that raises issues of discrimination—and the discrimination allegation is premised on
and inextricably linked to an earlier personnel action, the clock starts to run at the tim e
of the first discriminatory action, even if that is action is not reviewable by the MSPB.
The removal is the action that triggered the application of the mixed-case regulations. It
is the effective date of the removal that governs. Here, the effective date of the removal
was August 6, 2010, and as of that date Miller had already started the informal
counseling process.
Moreover, the court notes that while Miller initially sought review through the
EEO mixed-case complaint process, she exercised her option to switch over to the
MSPB mixed-case appeal route when the Agency did not issue a final decision within
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120 days. The MSPB then treated her mixed-case appeal as if she had originally filed
with it. There was no question as to her timeliness under the regulations.34
Further buttressing the court’s conclusion that Miller timely initiated the review
process as to her claim of discrimination is the issue of waiver.35 Miller did not raise the
issue of waiver in her opposition, but Defendant noted in its reply brief that the Agency
did not waive the timeliness issue simply because it accepted and investigated Miller’s
complaint, even after eight years of administrative review. Indeed, in Boyd v. United
States Postal Service,36 the Ninth Circuit held that “[t]he mere receipt and investigation
of a complaint does not waive objection to a complainant’s failure to comply with the
original filing time limit when the later investigation does not result in an administrative
finding of discrimination.”37
The administrative record in this case is more complicated and does not fit neatly
within the confines of Boyd. The agency accepted Miller’s complaint and investigated it.
However, it failed to issue a final decision within 120 days, and Miller opted to forego
waiting for the decision and instead filed a mixed-case appeal with the MSPB. An
EEOC administrative judge assigned to conduct a hearing on Miller’s EEO complaint
34Cobert v. Miller, 800 F.3d 1340, 1343 (9th Cir. 2015) (“Miller timely appealed her
removal to the Board.”).
35Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (noting that
although Title VII requires that plaintiffs timely exhaust administrative remedies, “filing a
timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit
in federal court, but a requirement that, like a statute of limitations, is subject to waiver,
estoppel, and equitable tolling[ ]”).
36752 F.2d 410 (9th Cir. 1985).
37Id. at 414.
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acknowledged Miller’s MSPB filing and therefore dismissed the EEOC case.38
However, the agency continued to work on the case and issued a final decision as to
her complaint on August 24, 2012.39 Defendant asserts that this decision was simply
resolving the other discrimination claims that were not subject to mixed-case review
with the MSPB,40 but the decision clearly addresses Miller’s discrimination claim related
to the reassignment and removal. It sets forth her three discrimination claims: Claim 1
dealt with her reassignment and subsequent removal; Claim 2 challenged other conduct
unrelated to the removal; Claim 3 involved an allegation of hostile work environment. In
the final decision, the Agency acknowledges that Claim 1 makes Miller’s complaint a
mixed-case one.41 The decision specifically dismisses claims 2 and 3 as untimely
because the events challenged in those claims occurred more than 45 days before
Miller had begun her informal pre-complaint processing.42 The rest of the thirteen-page
decision is devoted to Claim 1. Therefore, this situation falls outside Boyd. The
Agency did not merely accept, investigate, and find no discrimination as to the
reassignment and removal. Instead, it accepted, investigated, made findings of
untimeliness as to the other claims, but accepted and moved forward with the
reassignment/removal claim. The Agency, by finding the other claims time-barred
38Doc. 37-29.
39Doc. 37-24. Cf. Fed. R. Civ. P. 56(c)(3) (noting that the court may consider materials in
the record even if not cited by the parties).
40Doc. 37 at p. 8 n. 9.
41Doc. 37-24 at p. 1 n. 1.
42Doc. 37-24 at p. 3.
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because the challenged events fell outside the 45-day deadline but moving forward with
the reassignment/removal claim, necessarily found that claim timely. The court also
notes that in its final decision the Agency found that Miller’s “removal is inextricably
intertwined with the decision to direct her reassignment.”43 It cannot now argue that the
reassignment was a separate event that triggered the time clock on her administrative
review apart from the removal. Therefore, even if the court were to conclude that there
is a timeliness issue with the administrative review of Miller’s reassignment, Defendant
has waived reliance on any such argument.
B. Discrimination claims
Apart from the timeliness issue, Defendant argues summary judgment is
warranted because Miller has failed to present a triable issue of fact as to her
discrimination claim. In order to survive a motion for summary judgment on a Title VII
claim that does not rely on direct evidence of discrimination, a plaintiff must present a
prima facie case of discrimination.44 “Establishing a prima facie case . . . creates a
presumption that the plaintiff’s employer undertook the challenged employment action
because of the plaintiff’s race.”45 To meet the prima facie requirement, the plaintiff must
demonstrate that (1) she belongs to a protected class; (2) she was qualified for her
position; 3) she was subject to an adverse employment action; and 4) similarly situated
individuals were treated more favorably, or other circumstances surrounding the
43Doc. 37-24 at p. 10.
44Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002).
45Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006).
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adverse employment action give rise to an inference of discrimination.46 Defendant
asserts that Miller has not presented evidence to demonstrate the fourth element. Part
of Defendant’s argument is that she cannot bootstrap her discriminatory removal claim
to an untimely claim of discriminatory reassignment. As noted above, the court
concludes that there is no untimeliness issue here. Moreover, “[t]he burden of
establishing a prima facie case of disparate treatment is not onerous. . . . At the
summary judgment stage, ‘requisite 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.’”47 The evidence here, viewed in favor of Miller,
provides enough to establish a prima facie case: the circumstances surrounding the
creation of the position to fit Miller’s grade level, evidence that she may not have been
qualified for the position aside from her being Alaska Native; and her prior positive
performance reviews shortly before a management review that ended up with a
recommendation of reassignment followed quickly by a reassignment from a position of
general authority to a position limited to Alaska Native relations.
In order to rebut the presumption of discrimination, the burden then shifts to
Defendant to articulate a legitimate reason for the adverse employment action.48 The
parties do not dispute that Defendant has put forth a legitimate reason for Miller’s
removal: her failure to accept a management-directed reassignment to a position for
46Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).
47Lyons, 307 F.3d at 1112 (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th
Cir.1994)).
48Cornwell, 439 F.3d at 1028.
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which management thought Miller was qualified. Therefore, the presumption of
discrimination drops away and the burden shifts back to Miller to “defeat summary
judgment by satisfying the usual standard of proof required in civil rights cases under
[Rule 56].”49 That is, Miller must show that there is enough evidence in the record from
which a reasonable jury could conclude by a preponderance of the evidence that
Defendant had discriminatory motives when it removed Miller from NPS service. To do
this, Miller must point to evidence that suggests Defendant’s legitimate reason is merely
pretext for discrimination. Such pretext can be shown with evidence, either direct or
circumstantial, that discrimination was the real motivation behind the action, or with
evidence that demonstrates the legitimate reason is not believable.50 If relying on
circumstantial evidence, that evidence must be substantial and specific.51 However, the
Ninth Circuit has noted that “[t]here is some question whether that distinction for
circumstantial evidence is valid” and cautioned that the “‘specific and substantial’
standard ‘is tempered by our observation that a plaintiff’s burden to raise a triable issue
of pretext is hardly an onerous one.’”52 The court must consider the cumulative effect of
the evidence.53
49Id.
50Id.
51Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998).
52France v. Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015) (quoting Earl v. Nielsen Media
Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011)).
53Noyes v. Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007).
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There is ample evidence in the record to demonstrate that the stated reason for
Miller’s reassignment and removal does not reflect the full picture. Viewing the
evidence in favor of Miller, it appears that management did not necessarily want Miller
to fill the new Anchorage liaison position, but primarily wanted her removed from the
SNHP superintendent position. The question is whether there is evidence in the record
from which the jury could conclude that the removal was motivated in part by
discrimination. There is evidence to support a finding that Miller was not qualified for
the Alaskan Native liaison position. That evidence, coupled with the fact that she, as an
Alaska Native, was moved from a position of general supervisory authority to a position
dealing only with Alaskan Native interactions with NPS supports an inference of
discrimination. Alone, such evidence might not be substantial enough to create an
issue of fact for trial. Miller, however, also alleges that there was anti-native sentiment
at SNHP, which the reassignment and removal process effectively sanctioned. In
support, she relies on evidence that SNHP employees complained that she had a
preference for hiring Alaska Natives and voiced those concerns to James Vaughn, the
Associate Regional Director for Administration who was involved in Miller’s
reassignment and decision to remove.54 Although the hiring data did not support such
allegations of preferential hiring,55 a management review of SNHP was nonetheless
scheduled shortly thereafter. Vaughn testified that the management review, at least in
54Doc. 45-7 at pp. 3-4; doc. 45-16 at p. 1; Doc. 45-22 at p. 2.
55Doc. 45-7 at p. 4.
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part, provided an opportunity to “confirm or deny what was going on” in the park.56
While the review was explained to Miller and announced to employees as simply a way
to gain insight into the effectiveness of park operations and to assist the park’s
management team in moving forward, the findings communicated to Knox after the
review focused solely on Miller’s performance and complaints about her management
style.57 Many of the complaints noted were not discriminatory, but rather more
generally criticized her management style. However, Knox’s notes regarding the
review’s findings reference complaints about Miller’s preferential hiring, which combined
with other evidence clearly means preferential hiring of Alaska Natives.
There is one additional piece of evidence in the record that relates to
discriminatory motives. The management review team solicited comments by SNHP
employees. Miller relies on comments made by SNHP employee Hayley Matteon. In
her comments, Matteon complained about Miller’s management style in general, but
also stated as follows:
I feel the vision and goals for the park is to give control back to the native
Indians. . . . It is clear that the local tribes are bitter about their history and the
Russians “taking their land[.] . . . [S]ince Mary has been on, more and more
involvement with the local tribes is somewhat giving them their land back.
They have more say about the park than the park employees have. . . . [M]y
recommendation would be a superintendent that does not have such strong
ties with local tribes.58
56Id.
57Doc. 45-13.
58Doc. 45-12 at p. 2.
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Miller argues that this comment is evidence of the anti-native sentiment at the park that
influenced her removal from SNHP. Defendant argues there is no evidence in the
record to show that the decision makers shared the biases of Miller’s SNHP
subordinates. While remarks by non-decision makers are not direct evidence of
pretext, these same remarks can be considered circumstantial evidence of pretext
when viewed in light of facts that show the remarks were acted upon or influenced the
adverse action.59 As noted above, the record shows that there were complaints made
to management about Miller’s favoring and soliciting Alaska Natives for jobs. A non-
routine management review was scheduled on the heels of these complaints. The
management review relied on employee surveys and interviews. The reviewer told
Knox about complaints related to Miller’s attempt to get rid of certain staff and her
possible illegal and preferential hires.60 As a solution to the management issues raised
during the review, one recommendation was that Miller be removed from her position as
superintendent of SNHP.61 Knox’s notes made during his discussion with the reviewer
indicate that staff would be told that their concerns were received and action would be
taken.62 The reassignment process began almost immediately thereafter. Knox and
Masica both cited poor workplace relationships between Miller and her staff as an
59See France, 795 F.3d at 1176 (“[T]o create a genuine dispute of material fact on
pretext, a speaker of discriminatory statements need not be the final decision maker of an
employment decision.”); cf. Poland v. Chertoff, 494 F.3d 1174,1182-83 (9th Cir. 2007) (noting
that bias can be imputed to a decisionmaker when there is evidence that the biased
subordinate influenced or was involved in the decision process).
60Doc. 45-13.
61Id.
62Id.
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aggravating factor in their removal decision.63 While a close call, the court concludes
that the cumulative effect of Miller’s circumstantial evidence is substantial enough that a
jury could conclude that employees’ biased comments and concerns influenced the
ultimate decision to remove Miller from her post as superintendent.
Defendant argues that the same-actor inference applies here, which would place
a more onerous burden on Miller to show discrimination based on race. Under the
same-actor inference, when the same person both hires and fires a plaintiff, and both
actions occur within a short period of time, a strong inference arises that there was no
discriminatory motive behind the adverse employment action.64 Here, however, the
court finds the inference to be inapplicable. Knox was not the sole decisionmaker in
either Miller’s hiring or reassignment and removal. The evidence shows that multiple
levels of management were giving input and involved. Indeed, Masica, who was not
involved in Miller’s hiring, was the ultimate decisionmaker. Moreover, the allegations of
discrimination are more nuanced here. The evidence relied upon by Miller does not
create an inference that Knox harbored animus towards her because of her race, but
rather is relied on to show that NPS management wanted her removed to appease anti-
native sentiments of staff members and to address concerns that Miller was allowing
too much Alaska Native influence over management decisions in the park. Also, the
period of time between Miller’s date of hire and the decision to transfer her was just shy
of two years.
63Doc. 37-19 at p. 2; doc. 37-18 at p. 2.
64Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996).
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V. CONCLUSION
Based on the preceding discussion, Defendant’s motion at docket 37 is DENIED.
DATED this 28th day of May 2018.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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