Ashley v. Federal Express Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ELZBIETA ASHLEY,
Plaintiff,
v.
FEDERAL EXPRESS
CORPORATION,
Defendant.
Case No. 3:21-cv-00068-SLG
ORDER REGARDING MOTION FOR SUMMARY JUDGMENT
Plaintiff Elzbieta Ashley initiated this action against her former employer,
Federal Express Corporation (“FedEx”), in Alaska Superior Court in December
2020.1 Ms. Ashley seeks damages for retaliation and breach of the implied
covenant of good faith and fair dealing.2 FedEx removed the action to federal court
on March 24, 2021.3 Before the Court is FedEx’s motion for summary judgment.4
The Court heard oral argument on the motion on October 19, 2022.5
1 3AN-20-09639CI Ashley, Elzbieta vs. Federal Express Corp PRR, CourtView Public Access
Website Alaska Court System, https://records.courts.alaska.gov/eaccess (click “search cases”;
enter “3AN-20-09639CI”; click “search”; and then click either link under “Case Number” heading)
(last modified Mar. 24, 2021). Ms. Ashley filed an amended complaint in state court on
February 24, 2021. Docket 8 at 3-10 (Am. Compl.).
2 Docket 8 at 7-10 ¶¶ 21-29 (Am. Compl.).
3 Docket 1 (Notice of Removal).
4 Docket 21 (Mot. Summ. J.).
5 Docket 33 (Min. Entry).
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BACKGROUND
This case concerns an employment dispute arising from events occurring in
the years preceding Ms. Ashley’s retirement from FedEx in December 2018.
Although the parties dispute some of the details concerning these events, the
majority of the facts relevant to the Court’s disposition of the instant motion appear
to be undisputed.6
In October 1998, Ms. Ashley began working for FedEx in Anchorage,
Alaska, as a part-time “checker/sorter” who loaded airplanes.7 Ms. Ashley suffered
an injury at work in December 2000 that limited her to carrying no more than ten
pounds at a time.8 As a result of this medical restriction, Ms. Ashley accepted a
new position at FedEx in June 2005 as a part-time operations agent, a role in which
she processed employee timecards.9 Holding this position until her retirement in
December 2018, Ms. Ashley often shared timecard-processing duties with other
6 The Court relies primarily on the factual allegations set forth in Ms. Ashley’s amended
complaint at Docket 8; Ms. Ashley’s affidavit in support of her opposition to FedEx’s summary
judgment motion at Docket 28-1; the excerpts of deposition testimony from Ms. Ashley and her
former supervisor, George Kendall, to which the parties cite in their briefing (Ms. Ashley filed the
complete deposition transcripts at Docket 34-1 and Docket 34-2, respectively); and the 33
exhibits FedEx submitted in support of its summary judgment motion at Docket 21-2. FedEx’s
exhibits at Docket 21-2 include materials in Ms. Ashley’s FedEx personnel file, materials related
to a complaint Ms. Ashley filed against FedEx with the Alaska State Commission for Human
Rights, deposition excerpts, and FedEx corporate policies and agreements.
7 Docket 28-1 at 1-2 ¶¶ 3, 7 (Ashley Aff.).
8 Docket 28-1 at 2 ¶ 7.
9 Docket 28-1 at 2 ¶ 7.
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operations agents.10 She describes herself as “a successful, highly praised, well-
regarded, and valued employee.”11
Ms. Ashley reports that her experience working for FedEx was positive until
2014 or 2015 when a new manager, George Kendall, began supervising her.12
Under Mr. Kendall’s supervision, Ms. Ashley alleges that she faced “hostility in the
workplace, harassment and discrimination.”13 She attributes some of this hostility
to Mr. Kendall’s own actions, including his allegedly “making frequent comments
about [Ms. Ashley’s] age, medical conditions, and physical limitations resulting
from her on-the-job injuries, and . . . making false accusations against her.”14 Ms.
Ashley also asserts that Mr. Kendall favored her younger colleagues at her
expense by changing her work schedule without consideration of her preferences
and non-work obligations.15 Ms. Ashley further alleges that FedEx tolerated
“discrimination and taunting” from her peers in the form of disrespectful statements
targeting her status as a foreign-born American who speaks English as a second
language.16
10 Docket 28-1 at 1 ¶ 3, 3-5 ¶¶ 11-20.
11 Docket 8 at 4 ¶ 4 (Am. Compl.).
12 Docket 28-1 at 2 ¶ 8.
13 Docket 8 at 4 ¶ 8 (Am. Compl.).
14 Docket 8 at 5 ¶ 9 (Am. Compl.).
15 Docket 8 at 5 ¶¶ 11-12 (Am. Compl.).
16 See Docket 8 at 5 ¶ 10 (Am. Compl.) (alleging that one of Ms. Ashley’s peers greeted her with
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Ms. Ashley’s personnel file corroborates the change she describes in her
relationship with FedEx after Mr. Kendall became her supervisor. That file
identifies only a handful of minor issues from 2011 through early 2015 related to
attendance, punctuality, and working excess hours.17 In September 2015,
however, Ms. Ashley received the first in a series of disciplinary actions, warnings,
or “documented counselings” related to her “conduct.”18 Then, on April 26, 2017,
FedEx placed Ms. Ashley “on suspension with pay pending investigation of
potential violation of the Acceptable Conduct Policy P2-5.”19 A subsequent
warning letter, dated May 1, 2017, described “multiple” instances in which Ms.
Ashley’s “behavior was disruptive,” finding that she “initiated conversations
the phrase, “Hello, Mafia!” and another repeatedly asked her when she would “return to China”).
17 Docket 21-2 at 125-29 (Ashley Personnel R.).
18 Docket 21-2 at 125-26 (Ashley Personnel R.). Ms. Ashley’s personnel file includes two
records from 2015 reflecting such documented counselings, one dated September 12, 2015 and
the other dated September 15, 2015, in which Ms. Ashley received copies of policies concerning
acceptable employee conduct, compliance and business conduct, and a “Workplace Violence
Prevention Program-Acknowledgment Form.” Docket 21-2 at 124-26 (Ashley Personnel R.).
No other information about these records is provided, and they were not a focus of the parties’
briefing or deposition testimony.
19 Docket 21-2 at 31 (April 26, 2017 Inter-office Mem. re Investigative Suspension with Pay).
FedEx’s Acceptable Conduct Policy P2-5 establishes FedEx’s expectation that its employees
will “demonstrate the highest degree of integrity, responsibility, and professional conduct at all
times.” Docket 21-2 at 21 (FedEx Acceptable Conduct Policy). Among other things, the policy
establishes conduct-related expectations, describes prohibited behavior, defines “misconduct,”
and memorializes the internal procedures FedEx follows in investigating and responding to
alleged violations of the policy and disciplining employees. Docket 21-2 at 21-29 (FedEx
Acceptable Conduct Policy).
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multiple times regarding another employee’s previous conduct” and “spent time on
the clock talking on the phone to a co-worker who was not at work.”20
In response to the paid suspension and warning letter, Ms. Ashley filed a
complaint with the Alaska State Commission for Human Rights (the “ASCHR”) on
May 30, 2017, alleging that FedEx discriminated against her on the basis of her
age and national origin and retaliated against her for complaining about the
workplace harassment and discrimination she faced.21 Before the ASCHR
responded to Ms. Ashley’s complaint with a final decision, FedEx again placed Ms.
Ashley on investigative suspension with pay on January 22, 2018 after one of her
colleagues, fellow operations agent Lyle Turner, complained that Ms. Ashley
“created a hostile work environment.”22 An investigation from FedEx management
into Mr. Turner’s allegations concluded:
Turner and Ashley started having problems when Turner turned in a
security officer for using his phone in the training room. Ashley did not
approve of this and told him he was no angel because he was doing
his school work while at work. On 01/14/18 Turner walked past
Ashley’s office and said “hola Gangster”. Ashley did not say anything
to Turner about it on the 14th. On the [sic] 01/15/18 Turner asked why
Ashley was late when they arrived at work. Ashley and Turner were
20 Docket 21-2 at 33 (May 1, 2017 Inter-Office Mem. re Warning Letter 06-35- Disruptive
Behavior). Ms. Ashley challenged this warning letter through FedEx’s internal “Guaranteed Fair
Treatment Process” (“GFTP”), but FedEx upheld the decision to issue the warning letter, noting
that “by [her] own admission, [Ms. Ashley] acknowledged that [her] behavior and actions were
considered disruptive by policy.” Docket 21-2 at 42 (May 10, 2017 Inter-office Mem. re Step I
GFTP Meeting); Docket 21-2 at 44 (May 17, 2017 Inter-Office Mem. re Step I GFTP Response).
21 Docket 21-2 at 49-50 (May 30, 2017 ASCHR Compl.).
22 Docket 21-2 at 54 (January 22, 2018 Inter-office Mem. re Investigative Suspension with Pay);
Docket 21-2 at 52 (Turner Letter).
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talking back in [sic] forth in the hallway about a foot apart. Ashley
followed Turner to the office he works in and told him if he did not
change his behavior she was going to report him to their manager.
There was no physical contact between Turner and Ashley as they
both stated during their interviews. Video footage shows Turner and
Ashley in the hallway and they appear to be talking to each other.
Ashley does follow Turner to the doorway of his office and stops there.
Ashley appears to be saying something to Turner from the doorway
of his office.23
A resulting documented counseling letter, dated February 10, 2018, found that Ms.
Ashley “participated in disruptive behavior and contributed to a hostile work
environment” because she “spoke in an abusive tone and manner to a co-worker”
and “it was alleged [she] had made many threatening, intimidating, and or [sic]
abusive statements about previous peers and [her] manager.”24 Ms. Ashley was
not otherwise disciplined in express relation to this incident. However, another
memorandum issued on the same day contained a “Performance Reminder
because of [Ms. Ashley’s] failure to maintain a satisfactory attendance rating.”25
FedEx gave Ms. Ashley a paid day off (i.e., a “Decision Day”) to decide whether
she wished to remain employed with FedEx.26 Ms. Ashley did not terminate her
employment with FedEx at that point in time.
23 Docket 21-2 at 61 (FedEx February 1, 2018 Inter-office Mem. re Workplace Violence).
24 Docket 21-2 at 63 (FedEx February 10, 2018 Inter-office Mem. re Documented Counseling
Acceptable).
25 Docket 21-2 at 70 (FedEx February 10, 2018 Inter-office Mem. re Performance
Reminder/Decision Day/01-1-DD Unsat Attendance).
26 Docket 21-2 at 70 (FedEx February 10, 2018 Inter-office Mem. re Performance
Reminder/Decision Day/01-1-DD Unsat Attendance).
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On February 26, 2018, FedEx placed Ms. Ashley on investigative
suspension with pay after another incident with Mr. Turner in which she accused
him of “block[ing] her from exiting a room and . . . follow[ing] her into another.”27
Following an investigation by management, a resulting documented counseling
letter found that security video footage contradicted Ms. Ashley’s accusations and
instead showed that she exhibited “disruptive” behavior in violation of FedEx’s
Acceptable Conduct Policy by removing timecards from Mr. Turner’s office and
inhibiting his ability to complete his tasks.28 Subsequently, on March 19, 2018, Ms.
Ashley filed another complaint with the ASCHR, alleging that FedEx retaliated
against her for filing her initial ASCHR complaint in violation of Alaska Statute §
18.80.220 and Title VII of the Civil Rights Act of 1964 (“Title VII”).29 The ASCHR
dismissed Ms. Ashley’s complaint on September 17, 2018, finding “no evidence
[FedEx] retaliated against [Ms. Ashley] for filing a complaint of discrimination” and
that Ms. Ashley’s “allegations are not supported by substantial evidence.”30 In
support of these findings, the ASCHR cited FedEx’s internal investigations into the
27 Docket 21-2 at 78 (FedEx February 26, 2018 Inter-office Mem. re Investigative Suspension
with Pay); Docket 21-2 at 95 (March 1, 2018 FedEx Inter-office Mem. re Allegation of Workplace
Violence). Mr. Turner received an identical suspension on the same day. Docket 21-2 at 80
(FedEx February 26, 2018 Inter-office Mem. re Investigative Suspension with Pay).
28 Docket 21-2 at 103 (FedEx March 10, 2018 Inter-office Mem. re Written Documented
Counseling).
29 Docket 21-2 at 106 (March 19, 2018 ASCHR Compl.).
30 Docket 21-2 at 67 (ASCHR Determination).
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events leading to Ms. Ashley’s investigative suspensions, the February 2018
“Performance Reminder/Decision Day,” and the documented counseling letters,
concluding that the “[e]vidence did not reveal that [Ms. Ashley] was disciplined or
that the documented counseling had a discriminatory or retaliatory motive.”31
Although the ASCHR’s September 17, 2018 determination letter acknowledges
Ms. Ashley’s initial ASCHR complaint from May 2017, the letter does not expressly
issue a determination regarding the discrimination claims raised in Ms. Ashley’s
initial complaint.32 Ms. Ashley remained employed without any further issues
documented in her personnel file until she retired on December 8, 2018.33
In her February 24, 2021 amended complaint, Ms. Ashley characterizes her
retirement as “coerced,” “involuntary,” and “motivated by the employer’s
disciplinary actions, including suspensions, repeated harassments, and taunting
and discrimination based on [her] nation of origin.”34 Without specifying any
substantive sources of law, Ms. Ashley asserts two causes of action against
31 Docket 21-2 at 67 (ASCHR Determination).
32 See generally Docket 21-2 at 66-67 (ASCHR Determination). The Court’s record does not
contain a separate determination letter by the ASCHR on the first complaint filed with that
agency.
33 Docket 21-2 at 119 (Retirement Announcement Letter).
34 Docket 8 at 7 ¶ 20 (Am. Compl.).
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FedEx: (1) retaliation and (2) breach of the implied covenant of good faith and fair
dealing.35 FedEx moves for summary judgment on both claims.36
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The movant bears
the burden of showing that “there is an absence of evidence to support the
nonmoving party’s case.”37 If the movant meets this burden, the non-moving party
must “designate ‘specific facts showing that there is a genuine issue for trial.’”38
The non-moving party may not rely on “mere allegations or denials”; rather, to
reach the level of a genuine dispute, the evidence must be such “that a reasonable
jury could return a verdict for the non-moving party.”39
When evaluating the record to decide a motion for summary judgment, a
court must “view the facts and draw reasonable inferences” in the light most
favorable to the non-moving party.40 However, when the non-moving party’s
35 Docket 8 at 7-10 ¶¶ 21-29 (Am. Compl.).
36 See generally Docket 21.
37 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
38 Id. at 324 (quoting Fed. R. Civ. P. 56(e)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-
49 (1986).
39 Anderson, 477 U.S. at 248 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253,
288 (1968)).
40 Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted).
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version of the facts is “blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”41 The Ninth Circuit Court of Appeals
has “refused to find a ‘genuine issue’ where the only evidence presented is
‘uncorroborated and self-serving’ testimony.”42
In evaluating summary judgment motions on employment discrimination
claims, a district court must focus on determining whether genuine issues of
material fact are in dispute rather than “weighing . . . the evidence and making
findings.”43 The Ninth Circuit has “emphasized the importance of zealously
guarding an employee's right to a full trial, since discrimination claims are
frequently difficult to prove without a full airing of the evidence and an opportunity
to evaluate the credibility of the witnesses.”44 Still, it is proper for a district court to
grant summary judgment in favor of an employer when an employee has “‘created
only a weak issue [of fact]’ . . . against a backdrop of ‘abundant and uncontroverted
independent evidence that no discrimination has occurred.’”45
41 Id. at 380.
42 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Kennedy v.
Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)) (citing Johnson v. Washington Metro. Transit
Auth., 883 F.2d 125, 128 (D.C. Cir. 1989)); see also Oakley, Inc. v. McWilliams, 584 F. App’x
528, 529 (9th Cir. 2014) (“[A party’s] self-serving and uncorroborated declarations . . . are
insufficient to avert summary judgment . . . .” (citation omitted)).
43 Taybron v. City and County of San Francisco, 341 F.3d 957, 959 (9th Cir. 2003).
44 McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004) (citations omitted).
45 Opara v. Yellen, 57 F.4th 709, 726 (9th Cir. 2023) (citation omitted) (quoting Reeves v.
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JURISDICTION
The Court has subject matter jurisdiction over this matter pursuant to 28
U.S.C. § 1332 because the parties are diverse and do not dispute that the amount
in controversy exceeds $75,000.46
DISCUSSION
FedEx advances several arguments in its motion for summary judgment. It
first contends that Ms. Ashley cannot establish that the company retaliated against
her.47 In making this argument, FedEx focuses on two discrete events that, in its
view, arguably could constitute “protected activities”: (1) Ms. Ashley’s filing of
ASCHR complaints and (2) an instance in which Ms. Ashley reported Mr. Turner
for allegedly having a firearm in his vehicle while he was at work.48 FedEx claims
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).
46 See Docket 8 at 3 ¶ 2 (Am. Compl.) (“Plaintiff is and has been a resident and inhabitant of the
Third Judicial District, Alaska, for over 20 years.”); Docket 1 at 2 ¶ 6 (“FedEx is a Delaware
corporation, with its principal place of business in Shelby County, Memphis [sic] Tennessee and
is thus a citizen of Tennessee and Delaware.”). Ms. Ashley’s complaint does not specify an
amount in controversy, but FedEx contends that the jurisdictional minimum is satisfied based on
the categories of damages Ms. Ashley seeks in her complaint. See Docket 1 at 2 ¶ 7 (“Plaintiff’s
Amended Complaint contemplates an amount in excess of $75,000 . . . in that it seeks
compensatory damages including past, present, and future economic losses, damages to her
personal, professional and occupational reputation, for intentional and negligent infliction of
emotional distress and any other damages available.”); Docket 8 at 9 (Am. Compl.) (“[P]laintiff
prays for the recovery of money . . . so as to compensate plaintiff for her past, present, and
future economic losses resulting from the defendant’s discriminatory and retaliatory conduct; for
damages to her personal, professional and occupational reputation; [and] for defendant’s
intentional and negligent infliction of emotional distress . . . .”); Simmons v. PCR Tech., 209 F.
Supp. 2d 1029, 1035 (N.D. Cal. 2002) (finding combination of largely unspecified compensatory,
punitive, and emotional distress damages and attorney’s fees sufficient to meet the $75,000
minimum for diversity jurisdiction).
47 Docket 21 at 4-14.
48 Docket 21 at 4. Despite devoting attention in its briefing to the second issue, FedEx also
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that it did not retaliate against Ms. Ashley for engaging in either of these activities
because it did not subject her to severe harassment; there was no causal link
between these activities and any alleged adverse employment actions taken
against her; and FedEx had legitimate, non-discriminatory reasons for any
discipline imposed on Ms. Ashley.49 FedEx also asserts that it did not breach the
implied covenant of good faith and fair dealing because it did not terminate Ms.
Ashley’s employment or act in bad faith in a manner that unfairly caused her
economic harm or hardship.50 As support, FedEx points to Ms. Ashley’s
documented attendance issues and disruptive behavior as well as the similar
treatment she received compared to her peers.51 Lastly, FedEx maintains that, to
the extent Ms. Ashley has asserted a claim for constructive discharge, such claim
must fail because (1) any negative consequence Ms. Ashley faced resulted from
her own conduct and performance and (2) she was not subject to “violent acts,
racial slurs, derogatory remarks, physical threats, or extreme emotional distress.”52
The Court address these arguments and Ms. Ashley’s responses in turn.
contends that Ms. Ashley’s reporting Mr. Turner for having a firearm does not constitute a
protected activity. Docket 21 at 12-13.
49 Docket 21 at 5-14.
50 Docket 21 at 14-18.
51 Docket 21 at 11-12, 14, 18.
52 Docket 21 at 18-19.
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I. Retaliation
Citing the McDonnell Douglas53 framework that applies to employment
retaliation cases under both Alaska and federal law, FedEx contends that Ms.
Ashley cannot establish a prima facie case of retaliation.54 And even if she can
establish a prima facie case, FedEx maintains that it had legitimate, non-
discriminatory reasons for any adverse employment actions Ms. Ashley faced
because of her attendance issues and disruptive behavior.55 Ms. Ashley responds
by claiming that “[t]here are triable issues of fact related to whether [her] working
conditions became so intolerable that a reasonable person in her position would
have felt compelled to resign.”56 Ms. Ashley also contends that she can make her
case outside of the McDonnell Douglas framework by producing “‘direct or
circumstantial evidence demonstrating that a discriminatory reason’ motivated the
employer.”57
53 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
54 Docket 21 at 3-4 (citing Raad v. Alaska State Comm’n for Hum. Rts., 86 P.3d 899, 904
(Alaska 2004)).
55 Docket 21 at 11-12, 14.
56 Docket 28 at 7 (citing Nolan v. Cleland, 686 F.2d 806, 813 (9th Cir. 1982)).
57 Docket 28 at 8 (quoting Stovall v. ASRC Energy Servs. – Hous. Contracting Co., Case No.
3:18-cv-00259-TMB, 2021 WL 3361680, at *7 (D. Alaska Aug. 2, 2021)).
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A. Applicable Law
The Court begins its analysis by noting that Ms. Ashley’s complaint does not
specify whether she is asserting her retaliation claim pursuant to Alaska law58 or
federal law, namely Title VII.59 Her opposition to FedEx’s motion for summary
judgment cites exclusively Title VII and federal caselaw.60 FedEx urges the Court
to refrain from considering Ms. Ashley’s claim under federal law because she did
not reference Title VII in her amended complaint and did not meet the exhaustion
requirement applicable to Title VII claims.61
The Court finds that, while it appears that Ms. Ashley has not exhausted a
possible claim for constructive discharge under Title VII,62 she did exhaust her
administrative remedies with respect to her retaliation claim because her second
ASCHR complaint alleged retaliation.63 Further, Ms. Ashley’s omission of a
58 Alaska Stat. §18.80.220.
59 42 U.S.C. § 2000e-2.
60 See generally Docket 28.
61 Docket 30 at 8-9 (Reply Br. Supp. Mot. Summ. J.).
62 Docket 21-2 at 49-50 (May 30, 2017 ASCHR Compl.); Docket 21-2 at 106 (March 19, 2018
ASCHR Compl.). The record does not contain any complaints filed with the U.S. Equal
Employment Opportunity Commission (the “EEOC”) or the ASCHR in which Ms. Ashley alleged
a constructive discharge claim following her retirement.
63 See Rush v. Dep't of Health & Soc. Servs., No. 3:16-cv-00233-SLG, 2019 WL 2346628, at *7
(D. Alaska June 3, 2019) (noting ability to satisfy Title VII’s exhaustion requirement by filing “a
timely charge of discrimination with the EEOC or with a corresponding state agency” (emphasis
added) (citing 42 U.S.C. § 2000e-5(e))); Kelly v. Matanuska Elec. Ass’n, Inc., No. 3:09-cv-0027-
HRH, 2010 WL 11566468, at *8 (D. Alaska Aug. 30, 2010) (finding plaintiff exhausted
administrative remedies by filing charges with the ASCHR and the Anchorage Equal Rights
Commission); Docket 21-2 at 106 (March 19, 2018 ASCHR Compl.) (“I allege that respondent
has retaliated against me for filing a complaint of discrimination in violation of AS 18.80.220, and
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federal statutory reference does not warrant the summary dismissal of a federal
claim, particularly as Ms. Ashley’s second ASCHR complaint identified both Alaska
law and Title VII as legal support underlying her retaliation claim, her amended
complaint lodged in this Court pleads enough facts to support a Title VII claim, and
her opposition to FedEx’s summary judgment motion expressly cites Title VII.64
Accordingly, the Court will consider her retaliation claim pursuant to both Alaska
and federal law.
B. Analysis
1. Prima Facie Case of Retaliation under the McDonnell Douglas
Framework
To establish a prima facie case of retaliation using the McDonnell Douglas
framework pursuant to Title VII or Alaska law, a plaintiff must show: “(1) a protected
activity; (2) an adverse employment action; and (3) a causal link between the
Title VII of the Civil Rights Act of 1964 . . . .”). The Court notes that there was a significant delay
between when Ms. Ashley received a determination from the ASCHR (September 17, 2018) and
when she filed suit in the Alaska Superior Court (December 8, 2020), but the parties have not
briefed the Court on any applicable statutes of limitation. See Docket 21-2 at 66-68 (September
17, 2018 ASCHR Determination); 3AN-20-09639CI Ashley, Elzbieta vs. Federal Express Corp
PRR, CourtView Public Access Website Alaska Court System,
https://records.courts.alaska.gov/eaccess (click “search cases”; enter “3AN-20-09639CI”; click
“search”; and then click either link under “Case Number” heading) (last modified Mar. 24, 2021)
(showing December 8, 2020 filing date of Ms. Ashley’s complaint in the Alaska Superior Court).
Because the potential statute of limitations issue is not fully briefed, the Court will consider the
parties’ substantive arguments.
64 See Skinner v. Switzer, 562 U.S. 521, 529-30 (2011) (a complaint need not “pin plaintiff’s
claim for relief to a precise legal theory” to survive a motion to dismiss); Docket 21-2 at 106
(March 19, 2018 ASCHR Compl.); Docket 8 at 3-10 (Am. Compl.); Docket 28 at 7-8; Faurie v.
Berkeley Unified Sch. Dist., No. C 08-0060 TEH., 2008 WL 820682, *4 (N.D. Cal. 2008) (finding
plaintiff met burden to identify statutes underlying retaliatory discharge claim by citing statutory
provisions in opposition to defendants’ motion to dismiss).
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protected activity and the adverse employment action.”65 “Title VII retaliation
claims must be proved according to traditional principles of but-for causation, not
the lessened causation test stated in [42 U.S.C.] § 2000e–2(m). This requires
proof that the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.”66
The parties agree that Ms. Ashley engaged in a protected activity when she
filed the ASCHR complaints.67 Although Ms. Ashley’s complaint also alleges that
her reporting Mr. Turner for keeping a firearm in his car “was . . . a protected
activity,” Ms. Ashley’s opposition does not respond to FedEx’s argument that this
action was not a protected activity.68 By failing to respond to FedEx’s argument,
Ms. Ashley has waived that issue and the Court finds as a matter of law that
summary judgment in FedEx’s favor is warranted on that aspect of its retaliation
claim.69 Regardless, there is no indication from the caselaw that reporting a
65 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1034-35 (9th Cir. 2006) (citation
omitted); Raad, 86 P.3d at 905.
66 Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
67 Docket 21 at 4; Docket 28 at 4.
68 Docket 8 at 6-7 ¶¶ 15-17 (Am. Compl.); Docket 21 at 12-13 (“[N]ot only does Ashley fail to
establish that keeping a firearm in a vehicle is unlawful, she has not even identified a FedEx
policy that prohibits the conduct. Accordingly, she has failed to establish a protected activity.”);
see generally Docket 28 (failing to address FedEx’s argument).
69 See Lesane v. Hawaiian Airlines, Inc., CIVIL NO. 19-00179 JAO-KJM, 2020 WL 1078763, at
*8 n.16 (D. Haw. Mar. 6, 2020) (finding plaintiff’s failure to respond to defendants’ argument
constitutes waiver and concession that summary judgment is warranted in defendants’ favor); cf.
Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 2000) (holding that failure to raise argument
in opposition to summary judgment motion in district court proceedings constitutes waiver of that
argument on appeal because district court did not have opportunity to consider argument).
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colleague for violating a neutral policy—FedEx’s alleged prohibition, if any, on
employees’ bringing firearms to the workplace—is a protected activity.70 Thus, the
Court will proceed with its analysis of Ms. Ashley’s retaliation claim only as it relates
to the protected activity of filing ASCHR complaints.
The Court next considers whether Ms. Ashley suffered an adverse
employment action. An adverse employment action is a “materially adverse”
action that “well might have ‘dissuaded a reasonable worker from making or
supporting a charge of discrimination.’”71 It includes “actions ‘materially affect[ing]
compensation, terms, conditions, or privileges’ of employment.”72 Courts have
identified a wide range of activities as potentially constituting adverse employment
actions, including verbal abuse and intimidation, requiring an employee to work
outside of the confines of their medical restrictions, tampering with timesheets,
physical attacks, denying a transfer request, instituting lockdown procedures,
eliminating employee programs, reducing an employee’s workload, and changing
an employee’s physical workspace.73
70 Cf. Bowles v. United States, No. CV11-1474 PHX DGC, 2011 WL 6182330, at *4 (D. Ariz.
Dec. 13, 2011) (finding that reporting a person for possessing alcohol at firing range not
protected activity).
71 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
72 Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002) (alteration in original)
(first quoting 42 U.S.C. § 2000e-2(a)(1); and then quoting Kortan v. Cal. Youth Auth., 217 F.3d
1104, 1109 (9th Cir. 2000)).
73 See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (termination, failure
to promote, denial of transfer, or refusal to hire); Elvig v. Calvin Presbyterian Church, 375 F.3d
951, 965 (9th Cir. 2004) (verbal abuse and intimidation); Ray v. Henderson, 217 F.3d 1234,
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It is difficult to discern from Ms. Ashley’s amended complaint and opposition
to FedEx’s summary judgment motion precisely which adverse employment
actions Ms. Ashley alleges FedEx took against her in retaliation for her ASCHR
complaints and when, precisely, each such action occurred. Nonetheless, based
on a careful reading of Ms. Ashley’s filings, the Court interprets Ms. Ashley’s
amended complaint and summary judgment briefing to allege that FedEx
undertook the following adverse employment actions against her: (1) Mr. Kendall’s
verbal harassment and false accusations concerning Ms. Ashley’s conduct, (2)
discrimination and taunting from Ms. Ashley’s peers, (3) changes to Ms. Ashley’s
work schedule and workspace, (4) deliberately hiding timecards Ms. Ashley had to
process, (5) punishing Ms. Ashley for using her cellular phone to call a colleague
during working hours, (6) undertaking various formal personnel actions (e.g.,
investigative suspensions, documented counselings, warnings, and a
“Performance Reminder/Decision Day”) in January and February 2018 for
“disruptive behavior” and “excessive absences,” and (7) Ms. Ashley’s constructive
termination.74 The Court addresses these alleged actions to determine whether
1243-44 (9th Cir. 2000) (institution of lockdown procedures, elimination of employee programs,
and reduced workload); Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1126 (9th Cir.
2000) (change of workspace); Cloud v. DeJoy, No. 19-cv-04638-TSH, 2022 WL 4349832, at *3
(N.D. Cal. Sept. 19, 2022) (requirement to work outside of the confines of medical restrictions,
tampering with timesheets, physical attacks).
74 See Docket 8 at 5-7 ¶¶ 9, 12-13, 20 (Am. Compl.) (Mr. Kendall’s alleged verbal harassment
and accusations); Docket 28 at 4 (same); Docket 8 at 5 ¶ 10 (Am. Compl.) (alleged
discrimination and taunting); Docket 28 at 5-7 (same); Docket 8 at 5 ¶ 11 (Am. Compl.)
(schedule and workspace changes and hiding timecards); Docket 8 at 6 ¶ 14 (Am. Compl.)
(punishment for using cellular phone); Docket 8 at 7 ¶ 19 (Am. Compl.) (punishment for
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they constitute adverse employment actions under the law and, if so, whether any
genuine dispute of material fact exists with respect to their occurrence. Only then
will the Court consider whether a genuine dispute of material fact exists as to
whether these actions were causally related to Ms. Ashley’s filing ASCHR
complaints.
As an initial matter, any action predating the filing of Ms. Ashley’s first
ASCHR complaint on May 30, 2017 cannot properly be considered an adverse
employment action for the purpose of Ms. Ashley’s retaliation claim since that
complaint was the first protected activity in which Ms. Ashley engaged. This is
because for an employee to prevail on a retaliation claim, the adverse employment
action must have taken place after the protected activity.75 Therefore, Ms. Ashley’s
April 2017 investigative suspension with pay and May 1, 2017 warning letter for
using her cellular phone to call a colleague during working hours cannot be
considered retaliatory adverse employment actions.76 Likewise, any allegedly
false accusations Mr. Kendall may have lodged against Ms. Ashley in the related
“disruptive behavior” and “excessive absences”); Docket 8 at 7 ¶ 20 (Am. Compl.) (constructive
termination); Docket 28 at 7-9 (same).
75 See Cornwell, 439 F.3d at 1035 (affirming district court’s grant of summary judgment to
defendants because protected activity occurred after adverse employment action); Raad, P.3d
at 908 (accepting hearing examiner’s dismissal of retaliation claims because of lack of evidence
that school principals knew about discrimination complaint before making hiring decisions).
76 Docket 21-2 at 31 (April 26, 2017 Inter-office Mem. re Investigative Suspension with Pay);
Docket 21-2 at 33-34 (May 1, 2017 Inter-office Mem. re Warning Letter 06-35- Disruptive
Behavior).
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GFTP process, which concluded by May 17, 2017, as well as Mr. Kendall’s
referring to Ms. Ashley as “having paranoia” in 2015, cannot be retaliation for the
subsequently filed ASCHR complaints.77 Ms. Ashley’s schedule change also took
place before she filed her first ASCHR complaint, as she raised concerns about it
in an April 20, 2017 letter to the senior manager of FedEx’s Anchorage hub, Ryan
Ruble.78
It appears from the record that the remaining adverse employment actions
Ms. Ashley alleges took place after May 30, 2017 or on dates left unclear from the
record before the Court. The Court addresses each such allegation in turn.
a. Alleged Verbal Harassment and False Accusations from Mr. Kendall
Ms. Ashley’s amended complaint alleges that Mr. Kendall “deliberately
humiliated her, making frequent comments about [her] age, medical conditions,
and physical limitations resulting from her on-the-job injuries, and by making false
accusations against her.”79 The complaint also alleges that she was “unfairly and
discriminatorily disfavored” by Mr. Kendall, who “repeatedly humiliated [her] by
77 Docket 21-2 at 42 (May 10, 2017 Inter-office Mem. re Step I GFTP Meeting); Docket 21-2 at
44 (May 17, 2017 Inter-office Mem. re Step I GFTP Response); Docket 21-2 at 46-47 (May 10,
2017 Letter to Ms. Ashley re Disciplinary Letter); see also Docket 34-1 at 132:4-25, 133:1-3
(Ashley Dep.) (acknowledging that Mr. Kendall described Ms. Ashley as exhibiting paranoia
during a 2015 meeting between Ms. Ashley, Mr. Kendall, and a former colleague, Mallory Fisk).
78 Docket 21-2 at 121 (April 20, 2017 Letter from Ashley to Ryan Ruble re Schedule Changes).
79 Docket 8 at 5 ¶ 9 (Am. Compl.).
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summoning her to attend meetings with other managers, at which she was falsely
accused of ‘disruptive behavior.’”80
In some circumstances, “repeated and ongoing verbal harassment and
humiliation” can rise to the level of an adverse employment action, but typically
only when there exists some other form of harm.81 “[M]ere ostracism in the
workplace is not enough to show an adverse employment decision.”82 The record
before the Court does not support Ms. Ashley’s claims that Mr. Kendall verbally
harassed her to a level approaching “repeated and ongoing verbal harassment
and humiliation” after she filed either ASCHR complaint.83 Mr. Kendall admitted
that he made a comment about Ms. Ashley’s “having paranoia,” which, by itself, is
unlikely to constitute repeated verbal harassment rising to the level of an adverse
employment action and, in any event, was made years before Ms. Ashley’s
protected activities.84 There is no indication from the record that Mr. Kendall
80 Docket 8 at 5-6 ¶¶ 12-13 (Am. Compl.).
81 See Ray, 217 F.3d 1245 (“Repeated derogatory or humiliating statements, however, can
constitute a hostile work environment.”); cf. Coszalter v. City of Salem, 320 F.3d 968, 976-77
(9th Cir. 2003) (holding that, when taken together with other actions, “repeated and ongoing
verbal harassment and humiliation” amounted to adverse employment actions in the context of
a First Amendment retaliation case); Strother v. S. Cal. Permanente Med. Grp., 79 F.3d 859,
869 (9th Cir. 1996) (finding verbal and physical abuse by doctors sufficient to demonstrate
adverse employment decision), as amended on denial of reh’g (Apr. 22, 1996), as amended on
denial of reh’g (June 3, 1996).
82 Strother, 79 F.3d at 869 (citation omitted).
83 Coszalter, 320 F.3d at 976.
84 See Docket 34-2 at 19:20-25, 20:1-17 (Kendall Dep.) (acknowledging that Mr. Kendall
commented during or around September 2015 that, in his view, Ms. Ashley exhibited paranoid
or anxious behavior); Docket 34-1 at 132:4-25, 133:1-3 (Ashley Dep.) (acknowledging that Mr.
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repeatedly referred to Ms. Ashley as exhibiting paranoia after she filed either
ASCHR complaint.
Ms. Ashley’s filings also generally allege that Mr. Kendall made “frequent”
comments about her age, medical conditions, and physical limitations, but the
record does not substantiate these allegations.85 Apart from the paranoia
comment, Ms. Ashley’s affidavit supporting her opposition identifies only two other
specific statements made by Mr. Kendall after he learned of Ms. Ashley’s first
ASCHR complaint and her plans to inform FedEx upper-level managers about her
concerns.86 Mr. Kendall allegedly responded to this information by asking Ms.
Ashley, “Do you know how serious this letter is?” and stating, “No, you don’t; you
don’t go to talk with nobody [sic].”87 For the purposes of this summary judgment
motion, the Court will assume that Mr. Kendall made both of these statements.
Even so, they do not rise to the level of “[r]epeated derogatory or humiliating
statements” that courts have found equate to adverse employment actions.88 Both
statements, while far from representing the most appropriate responses from a
person with supervisory authority over an employee who believes she has been
Kendall’s paranoia comment was made during a 2015 meeting).
85 E.g., Docket 8 at 5 ¶ 9 (Am. Compl.).
86 Docket 28-1 at 5 ¶ 21, 6 ¶ 23.
87 Docket 28-1 at 5 ¶ 21, 6 ¶ 23.
88 Ray, 217 F.3d at 1245.
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wrongly treated in the workplace, appear to be isolated statements made in the
heat of the moment after a “clearly upset” Mr. Kendall learned about Ms. Ashley’s
ASCHR complaint.89 Ms. Ashley does not allege that they were repeated. Nor did
they relate to Ms. Ashley’s age, medical conditions, or physical limitations. And
they clearly did not have a chilling effect on Ms. Ashley, as she nevertheless raised
her concerns to others in the FedEx organization.90 At worst, these statements
were “mere ostracism in the workplace,” not adverse employment actions.91
Beyond the statements specifically referenced in her briefing, Ms. Ashley’s
lengthy deposition contains a number of other statements providing some support
for her claims, such as an allegation that Mr. Kendall said to her, “You are old
woman.”92 However, these statements are uncorroborated accusations not
reflected elsewhere in the record. In the absence of other evidence, such as
deposition testimony from other employees or documentation of these statements,
these allegations are insufficient to reach the level of a genuine dispute of material
fact as to whether Ms. Ashley faced repeated and ongoing verbal harassment from
Mr. Kendall.93 As the Court indicated during oral argument, it will not parse through
89 Docket 28-1 at 5 ¶ 21.
90 See Docket 34-1 at 125:9-12 (Ashley Dep.) (noting that FedEx had a meeting with Ms. Ashley
after she sent a letter to FedEx management).
91 Strother, 79 F.3d at 869; see also Ray, 217 F.2d at 1245 (“Not every insult or harassing
comment will constitute a hostile work environment.”).
92 Docket 34-1 at 85:21 (Ashley Dep.).
93 See Nat’l Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997)
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the hundreds of pages of deposition testimony to find additional evidence
supporting Ms. Ashley’s allegations when she had ample opportunity to bring any
other specific allegations to the Court’s attention.94 Having considered the alleged
statements from Mr. Kendall that Ms. Ashley specifically brought to the Court’s
attention, the Court finds that no reasonable jury could conclude that after the first
ASCHR was filed, Mr. Kendall subjected Ms. Ashley to repeated and ongoing
verbal harassment or humiliation that rose to the level of an adverse employment
action.
Ms. Ashley also claims that Mr. Kendall made “false accusations” against
her.95 Ms. Ashley refers to an accusation from Mr. Kendall that Ms. Ashley “hid[]
information” by failing to report another employee’s untruthfulness.96 Ms. Ashley
also identifies a suspension in which Mr. Kendall found Ms. Ashley to have
(“[C]onclusory allegations . . . without factual support, are insufficient to defeat summary
judgment.” (citation omitted)); cf. Fed. Trade Comm’n v. Publ’g Clearing House, Inc., 104 F.3d
1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any
supporting evidence, is insufficient to create a genuine issue of material fact.” (citations
omitted)), as amended (Apr. 11, 1997).
94 Docket 36 at 19:7-8 (“And I’m only going to consider the pages [of the deposition testimony]
that were cited in the briefing.”); see also Carmen v. S.F. Unified Sch. District, 237 F.3d 1026,
1031 (9th Cir. 2001) (“[T]he district court may determine whether there is a genuine issue of fact,
on summary judgment, based on the papers submitted on the motion and such other papers as
may be on file and specifically referred to and facts therein set forth in the motion papers.”
(emphasis added)); Rafferty v. Keypoint Gov’t Sols., Inc., Case No: 4:16-cv-00210-DCN, 2020
WL 7038952, at *13 (D. Idaho Nov. 30, 2020) (“When a party relies on deposition testimony in a
summary judgment motion or opposition without citing to specific page and line numbers, the
trial court may in its discretion exclude such evidence.” (citing Orr v. Bank of Am., NT & SA, 285
F.3d 764, 775 (9th Cir. 2002)).
95 Docket 8 at 5-6, 7 ¶ 13, 19 (Am. Compl.).
96 Docket 28 at 3.
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exhibited “disruptive behavior” because she discussed a performance issue
related to another employee.97 Even if both of these allegations are true, they both
predated the filing of Ms. Ashely’s first ASCHR complaint. The “hiding information”
accusation related to a former employee, Mallory Fisk, who was fired well before
Ms. Ashley’s first ASCHR complaint.98 Likewise, the suspension resulting from
Ms. Ashley’s allegedly speaking about another employee’s performance took
place in April 2017, and Ms. Ashley received the warning letter citing disruptive
behavior on May 1, 2017.99 Neither of these events can be linked to the
subsequently filed ASCHR complaints.
To the extent Ms. Ashley claims that Mr. Kendall made other false
accusations about her, she does not cite any specific instances in her opposition
or supporting affidavit.100 Nor is there any indication from the record that Mr.
Kendall made any false accusations against Ms. Ashley in connection with the
formal personnel actions described in her file. Each documented counseling letter
citing Ms. Ashley’s “disruptive behavior” resulted from an internal investigation
97 Docket 28 at 3-4.
98 See Docket 34-1 at 51:7-8, 53:3-5 (Ashley Dep.) (attributing the “hiding the information”
accusation to a situation involving Ms. Fisk); Docket 34-1 at 132:4-13 (Ashley Dep.) (describing
2015 meeting between Ms. Ashley, Mr. Kendall, and Ms. Fisk in which Mr. Kendall made the
“paranoia” comment); Docket 34-1 at 134:24-25, 135:1 (Ashley Dep.) (“[Ms. Fisk] was
terminated right away after the paranoia [comment was made].”).
99 Docket 21-2 at 33 (May 1, 2017 Inter-Office Mem. re Warning Letter 06-35- Disruptive
Behavior).
100 See generally Docket 28; Docket 28-1.
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from FedEx personnel—including others apart from Mr. Kendall—that supported
the claims of “disruptive behavior” made against Ms. Ashley in those letters. For
example, Ms. Ashley’s February 10, 2018 documented counseling letter followed
an investigation memorialized in a February 1, 2018 memorandum, and her March
10, 2018 documented counseling letter followed an investigation memorialized in
a March 1, 2018 memorandum.101 Neither of these documents reveal that Mr.
Kendall falsely accused Ms. Ashley of exhibiting disruptive behavior, and each lists
the specific reasons supporting the finding that Ms. Ashley exhibited “disruptive
behavior.”102 In short, Ms. Ashley has failed to designate specific facts that show
that there is a genuine dispute of material fact as to whether Mr. Kendall made
false accusations against Ms. Ashley after she filed the first ASHRC complaint.
b. Discrimination and Taunting from Ms. Ashley’s Peers
Ms. Ashley alleges that she “was subject to discrimination and taunting as a
foreign-born American for whom English is her second language.”103 Ms. Ashley
points to alleged statements from Sarah Chivers and Mr. Turner, two of Ms.
101 Docket 21-2 at 56-61 (FedEx February 1, 2018 Inter-office Memorandum re Workplace
Violence); Docket 21-2 at 63-64 (FedEx February 10, 2018 Inter-office Memorandum re
Documented Counseling Acceptable); Docket 21-2 at 95-101 (March 1, 2018 FedEx Inter-office
Memorandum re Allegation of Workplace Violence); Docket 21-2 at 103-04 (FedEx March 10,
2018 Inter-office Memorandum re Written Documented Counseling).
102 Docket 21-2 at 56-61 (FedEx February 1, 2018 Inter-office Memorandum re Workplace
Violence); Docket 21-2 at 63-64 (FedEx February 10, 2018 Inter-office Memorandum re
Documented Counseling Acceptable); Docket 21-2 at 95-101 (March 1, 2018 FedEx Inter-office
Memorandum re Allegation of Workplace Violence); Docket 21-2 at 103-04 (FedEx March 10,
2018 Inter-office Memorandum re Written Documented Counseling).
103 Docket 8 at 5 ¶ 10 (Am. Compl.).
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Ashley’s peers. Ms. Chivers allegedly asked Ms. Ashley when she would “return
to China,” and Mr. Turner allegedly greeted her with the words “Hello, Mafia.”104
Ms. Ashley testified that Ms. Chivers made the China comment once, while Mr.
Turner made the Mafia comment a “few times.”105
The Court will construe these statements as offensive and mean spirited to
Ms. Ashley. However, Title VII is not a “general civility code.”106 “[C]onduct must
be extreme to amount to a change in the terms and conditions of employment . . .
.”107 While perhaps an unfortunate reality in some workplaces, “the sporadic use
of abusive language, gender-related jokes, and occasional teasing” does not,
without more, establish a hostile work environment.108 The limited instances in
which Ms. Chivers and Mr. Turner made the comments demonstrate that they did
not change the conditions of Ms. Ashley’s employment or rise to the level of
“repeated and ongoing verbal harassment and humiliation.”109
Additionally, an employer is only liable for its employees’ retaliatory
harassment if it encourages or tolerates the harassment.110 There is no indication
104 Docket 8 at 5 ¶ 10 (Am. Compl.); Docket 28 at 3 (China comment); Docket 28 at 5 (Mafia
comment).
105 Docket 34-1 at 92:9-25, 93:1-18 (Ashley Dep.).
106 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998) (citations omitted).
107 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citations omitted).
108 Id. (citing B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992)).
109 Coszalter, 320 F.3d at 976.
110 Watson v. Las Vegas Valley Water Dist., 268 F. App’x 624, 627 (9th Cir. 2008) (“[E]mployers
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from the record that Mr. Kendall or anyone else at FedEx in a supervisory position
was aware of the alleged China and Mafia comments made to Ms. Ashley.111
Without awareness of those comments, FedEx cannot be held liable for them. This
does not mean that the comments may not have been hurtful to Ms. Ashley, but
that potential hurtfulness does not in this situation constitute an adverse
employment action by FedEx.
c. Change to Ms. Ashley’s Workspace
Ms. Ashley alleges that FedEx modified the location of her workspace “by
placement of her in a smaller office than the office she previously occupied[].”112
Under certain circumstances this might constitute an adverse employment
action.113 However, Ms. Ashley admitted during her deposition that the only other
two similarly situated employees at the time, Mr. Turner and Linda Ruiz, also faced
the same or similar workspace modifications.114 Ms. Ashley cannot demonstrate
that she suffered an adverse employment action when her colleagues with the
are not vicariously liable for retaliatory harassment by coworkers; rather, it is only the employer's
encouragement or toleration of such harassment that may constitute an adverse employment
action.” (citations omitted)).
111 See generally Docket 28; Docket 28-1; Docket 34-2 at 36:22-25, 37:1-2 (Kendall Dep.)
(stating no awareness of the Mafia comment at the time it was made).
112 Docket 8 at 5 ¶ 11 (Am. Compl.).
113 Cf. Novak v. England, 316 F. App’x 671, 673 (9th Cir. 2009) (reversing district court’s grant of
summary judgment in age discrimination action in light of existence of genuine issue of material
fact as to whether plaintiff was reassigned to perform work falling below his job description and
relocated to an overflow area).
114 Docket 34-1 at 101:20-25, 102:1-12 (Ashley Dep.).
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same job titles or duties as her, but who did not file ASCHR complaints, were
subject to the same or similar workspace modifications.115
d. Deliberately Hiding Timecards
Ms. Ashley alleges that “[t]imecards were deliberately hidden from her in an
attempt to diminish [her] productivity.”116 Ms. Ashley’s briefing does not clearly
identify the specific event or events to which she refers in relation to this claim. It
is possible that Ms. Ashley is referring to conflicts or events involving Ms. Fisk, Ms.
Chivers, or Mr. Turner.117 But as discussed below, regardless of which event or
events are at issue, the record does not demonstrate genuine issue of fact.
First, beyond Ms. Ashley’s statements, there is no evidence in the record
substantiating the claim that the timecards Ms. Ashley was tasked with processing
were hidden from her or that her productivity was diminished. Second, as noted
above, “employers are not vicariously liable for retaliatory harassment by
coworkers; rather, it is only the employer's encouragement or toleration of such
harassment that may constitute an adverse employment action.”118 FedEx
115 See Thomas v. Spencer, 294 F. Supp. 3d 990, 1000 (D. Haw. 2018) (finding no adverse
employment action existed when the plaintiff received the same or more overtime hours as his
similarly situated colleagues).
116 Docket 8 at 5 ¶ 11 (Am. Compl.).
117 See, e.g., Docket 28 at 2-3 (alleging that Ms. Fisk falsified timecards and, on a separate
occasion, “it was discovered that time cards were missing” after Ms. Chivers quit her job);
Docket 21-2 at 95-101 (March 1, 2018 Inter-office Memorandum re Allegation of Workplace
Violence) (describing conflict between Ms. Ashley and Mr. Turner involving timecards).
118 Watson, 268 F. App’x at 627.
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management became aware of separate timecard-related disputes involving Ms.
Chivers and Mr. Turner, and both of them were suspended in relation to those
incidents.119 Ms. Fisk was fired for falsifying timecards.120 These actions show
that, even if other employees hid timecards from Ms. Ashley and management
became aware of those events, FedEx did not encourage or tolerate such
behavior. To the contrary, FedEx took action to investigate the claims. And, in the
case of the dispute involving Mr. Turner, management found that Ms. Ashley,
rather than Mr. Turner, exhibited disruptive behavior. In the documented
counseling letter following that incident, management noted that Ms. Ashley had
“removed all work (timecards) from [her] co-worker’s office,” leading to Mr. Turner’s
“being without any work (timecards) to enter.”121 In sum, Ms. Ashley has not
demonstrated that a genuine dispute of material fact exists as to whether she faced
an adverse employment action from any of the timecard-related incidents.
e. Negative Personnel Actions
FedEx acknowledges that the February 10, 2018 “Performance
Reminder/Decision Day” letter Ms. Ashley received was an adverse employment
119 See Docket 34-1 at 152:19-25, 153:1-2 (Ashley Dep.) (stating that Ms. Chivers was
suspended at some point in time after the timecard incident); Docket 21-2 at 80 (February 26,
2018 Inter-office Memorandum re Investigative Suspension with Pay) (suspending Mr. Turner).
120 Docket 34-1 at 134:24-25, 135:1-4, 258:21 (Ashley Dep.).
121 Docket 21-2 at 103 (March 10, 2018 Inter-office Memorandum re Written Documented
Counseling).
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action.122 Citing FedEx policy and caselaw interpreting FedEx policies, FedEx
maintains that the other actions Ms. Ashley faced—documented counseling letters
and investigative suspensions—“are not disciplinary in nature.”123 Ms. Ashley
does not rebut these arguments in her opposition and thereby waives an
opportunity to contest them.124 Even if Ms. Ashley had not waived this argument,
and as discussed below, Ms. Ashley has not demonstrated that there are genuine
issues of material fact as to FedEx’s legitimate, non-discriminatory reasons for
taking action against Ms. Ashley due to her documented attendance and
behavioral issues that are unrelated to her filing of the ASCHR complaints.
The Court turns to whether there is evidence of a causal link between
FedEx’s issuance of the February 10, 2018 “Performance Reminder/Decision Day”
letter and Ms. Ashley’s filing of the ASCHR complaints.125 Clearly, there can be
no link between that action and the filing of the second ASCHR complaint, as the
122 Docket 21 at 10; Docket 21-2 at 70-71 (FedEx February 10, 2018 Inter-office Memorandum
re Performance Reminder/Decision Day/01-1-DD Unsat Attendance).
123 Docket 21 at 9 (first citing Docket 21-1 at 6 ¶ 26 (FedEx Statement of Undisputed Material
Facts); then citing Freeman v. Fed. Express Corp., No. 804CV2481T24TBM, 2006 WL 563123,
at *9 (M.D. Fla. Mar. 8, 2006); and then citing Feaster v. Fed. Express Corp., C/A No. 2:13-cv-
2517 DCN, 2014 WL 4269082, at *3 n.2 (D.S.C. Aug. 28, 2014), aff'd, 599 F. App’x 63 (4th Cir.
2015)).
124 See Lesane v. Hawaiian Airlines, Inc., CIVIL NO. 19-00179 JAO-KJM, 2020 WL 1078763, at
*8 n.16 (D. Haw. Mar. 6, 2020) (finding plaintiff’s failure to respond to defendants’ argument
constitutes waiver and concession that summary judgment is warranted in defendants’ favor); cf.
Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 2000) (holding that failure to raise argument
in opposition to summary judgment motion in district court proceedings constitutes waiver of that
argument on appeal because district court did not have opportunity to consider argument).
125 Docket 21-2 at 70-71 (FedEx February 10, 2018 Inter-office Memorandum re Performance
Reminder/Decision Day/01-1-DD Unsat Attendance).
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second complaint was not filed until March 19, 2018, after the letter had been
issued.
With respect to the first ASCHR complaint, even when the facts are viewed
in the light most favorable to Ms. Ashley, the record before the Court does not
contain any evidence to support a causal link. The “Performance
Reminder/Decision Day” letter does not reference Ms. Ashley’s first ASCHR
complaint.126 Instead, it cites Ms. Ashley’s “failure to maintain a satisfactory
attendance rating” and references meetings on March 27, 2017 and December 19,
2017 concerning her attendance rating and the May 1, 2017 warning letter she
received for disruptive behavior.127 FedEx issued the May 1, 2017 warning letter
before Ms. Ashley’s filed her first ASCHR complaint on May 30, 2017, so that
cannot be a basis for retaliation. Likewise, the March 27, 2017 attendance
discussion predates the first ASCHR complaint. Although the December 19, 2017
attendance discussion followed the May 30, 2017 complaint, it did so by nearly
seven months. Additionally, the record reveals that this meeting followed two
instances on December 5 and 6, 2017 in which Ms. Ashley did not report to work.128
126 Docket 21-2 at 70-71 (FedEx February 10, 2018 Inter-office Memorandum re Performance
Reminder/Decision Day/01-1-DD Unsat Attendance).
127 Docket 21-2 at 70 (February 10, 2018 Inter-office Memorandum re Performance
Reminder/Decision Day/01-1-DD Unsat Attendance).
128 See Docket 21-2 at 132 (Ashley Attendance R.) (noting “S-4:00,” compared to entries
beginning with “W,” in Ms. Ashley’s attendance record for December 5 and 6, 2017); Docket 21-
1 at 8 ¶ 40 (FedEx Statement of Undisputed Material Facts) (“[Ms. Ashley] called out on
December 5 and December 6, 2017.”).
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It is legitimate, not discriminatory, for FedEx to warn Ms. Ashley about its
attendance expectations two weeks after she missed two days of work and amidst
a broader history of attendance issues.129 In short, Ms. Ashley has not
demonstrated any genuine issue of fact that might suggest that Fed Ex’s decision
to conduct the December 2017 attendance discussion was in any way related to
her filing of the ASCHR complaint in May 2017, particularly when the record lacks
any indication that FedEx singled out Ms. Ashley in addressing her attendance
issues while letting other employees with attendance issues evade discipline.130
Moreover, the considerable time lag between the filing of Ms. Ashley’s first ASCHR
complaint in May 2017 and FedEx’s issuance of the “Performance
Reminder/Decision Day” letter in February 2018 is further indication that no causal
link between FedEx’s employment actions and Ms. Ashley’s ASCHR filings
exists.131
129 See Docket 21-2 at 124-29 (Ashley Personnel R.) (summarizing documented counseling
records related to attendance issues); Docket 21-1 at 8 ¶ 40 (FedEx Statement of Undisputed
Material Facts) (noting August 16, 2017 counseling for attendance issues and that “[Ms. Ashley]
called out on December 5 and December 6, 2017”); Docket 21-2 at 132 (Ashley Attendance R.)
(noting “S-4:00,” compared to entries beginning with “W,” in Ms. Ashley’s attendance record for
December 5 and 6, 2017).
130 Cf. Rahmani v. Neiman Marcus Grp., Inc, No C-04-3313 VRW, 2006 WL 8459733, at *4
(N.D. Cal. Sept. 30, 2006) (describing evidence in record supporting an inference that employee
was singled out for attendance issues when other employees with worse attendance records did
not face similar consequences).
131 See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (finding 20-month gap
between employment action and protected activity insufficient to establish causality and
identifying cases where federal appellate courts have found three- and four-month gaps
similarly insufficient (citations omitted)); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061
(9th Cir. 2002) (collecting cases where courts held that lapses of four, five, eight, and twelve
months between protected activity and adverse employment action were “too long . . . to give
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Ms. Ashley’s briefing does not offer any such causal evidence. Her primary
argument in support of a causal link appears to be Mr. Kendall’s paranoia
comment, but as discussed above, that comment was made years before Ms.
Ashley filed her first ASCHR complaint.132 Ms. Ashley also contends that FedEx
relied upon false accusations when it disciplined her for disruptive behavior and
excessive absences.133 At some level, it is curious that the “Performance
Reminder/Decision Day” letter was provided to Ms. Ashley on the same day that
she received a documented counseling for disruptive behavior following the
January 2018 dispute with Mr. Turner regarding the timecards, yet the
“Performance Reminder/Decision Day” letter does not mention the documented
counseling letter.134 This may have been intentional since FedEx does not
consider documented counseling letters as disciplinary in nature.135 Regardless,
even if the “Performance Reminder/Decision Day” letter was implicitly related to
rise to an inference of causation” (citations omitted)).
132 See Docket 28 at 4 (seemingly offering paranoia comment as evidence that FedEx retaliated
against Ms. Ashley “because of her protected activity”); Docket 34-2 at 19:20-25, 20:1-17
(Kendall Dep.) (acknowledging that Mr. Kendall commented during or around September 2015
that, in his view, Ms. Ashley exhibited paranoid or anxious behavior); Docket 34-1 at 132:4-25,
133:1-3 (Ashley Dep.) (acknowledging that Mr. Kendall’s paranoia comment was made during a
2015 meeting).
133 Docket 8 at 7 ¶ 19 (Am. Compl.).
134 Docket 21-2 at 63-64 (FedEx February 10, 2018 Inter-office Mem. re Documented
Counseling Acceptable); Docket 21-2 at 70-71 (February 10, 2018 Inter-office Memorandum re
Performance Reminder/Decision Day/01-1-DD Unsat Attendance).
135 See Docket 21-2 at 134 (FedEx Performance Improvement Policy) (“Documented
counselings are ineligible for the GFTP process because they are not disciplinary in nature.”
(citation omitted)).
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FedEx’s findings that Ms. Ashley engaged in disruptive behavior in January 2018,
the record does not reveal that any of those findings was based on false or
incorrect information. As noted above, FedEx conducted internal investigations of
the events leading to each of Ms. Ashley’s documented counseling letters.136
Those investigations involved FedEx managers—in addition to Mr. Kendall—who
were not involved in the underlying dispute leading to Ms. Ashley’s suspensions.137
Similarly, FedEx issued Ms. Ashley the “Performance Reminder/Decision Day”
letter following multiple meetings concerning her attendance rating and the May 1,
2017 warning letter she received for disruptive behavior.138 In sum, Ms. Ashley
has not demonstrated that a material issue of fact exists as to the lack of a causal
connection between Ms. Ashley’s ASCHR complaints and the February 10, 2018
“Performance Reminder/Decision Day” letter.
f. Constructive Discharge
Asserting that her retirement was “coerced” and “involuntary” as a result of
the disciplinary actions, harassment, taunting, and discrimination she faced, Ms.
136 Docket 21-2 at 56-61 (FedEx February 1, 2018 Inter-office Memorandum re Workplace
Violence); Docket 21-2 at 63-64 (FedEx February 10, 2018 Inter-office Memorandum re
Documented Counseling Acceptable); Docket 21-2 at 95-101 (March 1, 2018 FedEx Inter-office
Memorandum re Allegation of Workplace Violence); Docket 21-2 at 103-04 (FedEx March 10,
2018 Inter-office Memorandum re Written Documented Counseling).
137 See Docket 21-2 at 56-61 (FedEx February 1, 2018 Inter-office Memorandum re Workplace
Violence) (investigation conducted by Jeremiah Williams, Security Specialist III); Docket 21-2 at
95-101 (March 1, 2018 FedEx Inter-office Memorandum re Allegation of Workplace Violence)
(investigation conducted by Chris Turcic, Senior Security Specialist).
138 Docket 21-2 at 70 (February 10, 2018 Inter-office Memorandum re Performance
Reminder/Decision Day/01-1-DD Unsat Attendance).
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Ashley appears to allege that she suffered an adverse employment action when
she was constructively terminated from her job.139 In support, Ms. Ashley cites
three cases interpreting federal pleading standards.140 Ms. Ashley appears to cite
these cases for the proposition that she need not have expressly alleged a
constructive discharge claim in her complaint in order for that claim to survive at
the summary judgment stage. Ms. Ashley also contends that her affidavit and
deposition “may warrant a finding by an impaneled jury that she was working under
conditions that were intolerable, and sufficient to establish a constructive
discharge.”141 In its reply, FedEx asks the Court to refrain from considering this
issue because Ms. Ashley has not properly alleged a constructive discharge claim
in her amended complaint and, to the extent she alleges this as part of a Title VII
claim, has not exhausted all administrative remedies.142 In the alternative, if the
Court considers this issue, FedEx maintains that Ms. Ashley has not proffered
sufficient evidence to show that a reasonable person in her circumstances “would
139 Docket 8 at 7 ¶ 20 (Am. Compl.); Docket 28 at 9.
140 Docket 28 at 9 (first citing Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011); then citing
Swierkiewicz v. Sorema N.A., 543 U.S. 506 (2002); and then citing Scheuer v. Rhodes Krause,
416, U.S. 232, 236 (1974)).
141 Docket 28 at 9.
142 Docket 30 at 7-9.
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have been compelled to resign.”143 FedEx also asserts that there is no evidence
Ms. Ashley was treated differently from her colleagues.144
The Court finds that Ms. Ashley has adequately pled the facts necessary to
allege a constructive discharge in her amended complaint.145 Ms. Ashley further
intimated in her opposition to FedEx’s summary judgment that she views her
allegedly wrongful constructive discharge as an adverse employment action.146
FedEx has a stronger argument that Ms. Ashley may not have exhausted a
possible constructive discharge claim since she has not filed any complaints with
the EEOC or ASCHR with respect to her termination. Although FedEx’s briefing
does not explicitly make this point, counsel for FedEx explained during oral
argument that Ms. Ashley “did not indicate in her [ASCHR complaint] charge that
there was a constructive discharge.”147 The Court agrees with FedEx that Ms.
Ashley did not exhaust her administrative remedies to the extent she seeks to
pursue a wrongful constructive discharge claim under Title VII. Ms. Ashley does
not appear to dispute this point, or at least she does not do so persuasively.
143 Docket 30 at 7.
144 Docket 30 at 8.
145 See Docket 8 at 7 ¶ 20 (Am. Compl.) (“On December 8, 2018, the plaintiff, motivated by the
employer’s disciplinary actions, including suspensions, repeated harassments, and taunting and
discrimination based on the plaintiff’s nation of origin, formally retired, but her retirement should
be understood to have been coerced and to have thus been involuntary.”).
146 Docket 28 at 9.
147 Docket 30 at 8-9; Docket 36 at 11:17-18.
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However, the Court will consider Ms. Ashley’s constructive discharge argument to
the extent she seeks to offer her allegedly coerced retirement as evidence of an
adverse employment action that FedEx took against her in retaliation for her
ASCHR complaints.
Ms. Ashley is correct that a “[w]rongful constructive discharge would be an
adverse employment action.”148 A constructive discharge “occurs when the
working conditions deteriorate . . . to the point that they become ‘sufficiently
extraordinary and egregious to overcome the normal motivation of a competent,
diligent, and reasonable employee to remain on the job to earn a livelihood and to
serve his or her employer.’”149 A district court may grant an employer’s summary
judgment motion on a constructive discharge claim when no “reasonable trier of
fact could find that [the plaintiff] was driven from the workplace.”150 This is a higher
standard than a hostile work environment claim, which requires a plaintiff to
demonstrate “severe or pervasive harassment.”151
As discussed extensively in this order, Ms. Ashley has not presented
evidence from which a reasonable juror could find that FedEx subjected her to
such egregiously deteriorated working conditions as a result of her filing of the
148 Summar v. Potter, 355 F. Supp. 2d 1046, 1058 (D. Alaska 2005).
149 Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (quoting Turner v. Anheuser–
Busch, Inc., 876 P.2d 1022 (1994)).
150 Id.
151 Id.
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ASCHR complaints so as to drive her from the workplace. The formal actions
FedEx took against Ms. Ashley were non-disciplinary in nature or followed
documented findings, supported by internal investigations, that Ms. Ashley
engaged in disruptive or unproductive behavior in violation of company policies.
Other changes, such as the modification of Ms. Ashley’s schedule and workspace,
applied equally to other employees. The potentially offensive verbal remarks
directed at Ms. Ashley came from her peers, without evidence that management
was aware of or tolerated them, or otherwise did not reach the threshold necessary
to change the conditions of Ms. Ashley’s employment. In short, no reasonable trier
of fact could find that these actions or conditions were “sufficiently extraordinary
and egregious to overcome the normal motivation of a competent, diligent, and
reasonable employee” to stay at their job.152 Nor could a trier of fact find that these
actions or conditions of employment were causally related to the filing of the
ASCHR complaints. No genuine dispute of material fact exists as to whether Ms.
Ashley was constructively discharged when she left FedEx in December 2018.
2. Direct or Circumstantial Evidence of Retaliation
As a final argument supporting her retaliation claim, Ms. Ashley seems to
suggest that she can “produce direct or circumstantial evidence demonstrating that
a discriminatory reason” motivated the adverse employment action FedEx took
152 Id. (quoting Turner, 876 P.2d at 1022).
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against her.153 But Ms. Ashley has not offered direct or circumstantial evidence of
a discriminatory motive for the “Performance Reminder/Decision Day” letter. To
the contrary, FedEx has offered the legitimate business reasons for which it
disciplined Ms. Ashley, which were to give her an opportunity to reflect on, and
possibly correct, the attendance and behavioral issues documented in prior
counseling and warning letters. That Ms. Ashley did not seem to have received
any disciplinary or counseling letters after that point through her retirement is
further indication that FedEx’s reasons for subjecting Ms. Ashley to the
“Performance Reminder/Decision Day” were not only non-discriminatory but also
effective in improving her performance.
In light of the above, the Court finds that FedEx is entitled to summary
judgment on Ms. Ashley’s retaliation claim. To the extent Ms. Ashley asserts a
separate claim for constructive discharge, FedEx is entitled to summary judgment
on that claim as well.
II. Breach of the Implied Covenant of Good Faith and Fair Dealing
Ms. Ashley’s amended complaint alleges that FedEx breached the implied
covenant of good faith and fair dealing “by disciplining her for allegedly disruptive
behavior and allegedly excessive absences, based on false allegations; by
retaliating against her for filing her complaint of discrimination; by defaming the
plaintiff; and by subjecting the plaintiff to economic harm and hardship; and by
153 Docket 28 at 8 (quoting Stovall, 2021 WL 3361680, at *7).
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compelling plaintiff to resign her employment.”154 In its summary judgment motion,
FedEx evaluates both the objective and subjective breaches of the implied
covenant of good faith and fair dealing. FedEx contends that neither category of
breach applies because (1) FedEx had no bad-faith motive to deprive Ms. Ashley
of any job benefits; (2) Ms. Ashley merely had personality disputes with her
colleagues and Mr. Kendall; (3) FedEx treated similarly situated employees
similarly; and (4) FedEx had legitimate reasons for the actions it took since Ms.
Ashley had attendance issues and engaged in disruptive behavior.155 In her
opposition, Ms. Ashley does not engage substantively with FedEx’s legal
arguments and instead recites facts that she proposes demonstrate FedEx’s unfair
treatment of her.156
As a general rule under Alaska law, “[w]hether an employer’s action
breached the covenant of good faith and fair dealing is a question for the trier of
fact.”157 Implied in all at-will employment contracts in Alaska, the covenant of good
faith and fair dealing “does not lend itself to precise definition, but it requires at a
minimum that an employer not impair the right of an employee to receive the
154 Docket 8 at 9 ¶ 29 (Am. Compl.).
155 Docket 21 at 14-18 (Mot. Summ. J.).
156 See generally Docket 28. The Court could find that Ms. Ashley has waived this claim given
her mostly non-substantive response to FedEx’s legal arguments, but it nonetheless will
evaluate the facts Ms. Ashley offers in her opposition in light of the governing legal standards.
157 Crowley v. State, Dep't of Health & Social Servs., 253 P.3d 1226, 1230 (Alaska 2011).
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benefits of the employment agreement.”158 The covenant also requires that the
“employer treat like employees alike.”159 “An employer can commit either an
objective or subjective breach of the covenant.”160 The objective component
“prohibits the employer from dealing with the employee in a manner that a
reasonable person would regard as unfair.”161 “Unfair actions include disparate
employee treatment, terminations on grounds that are unconstitutional, and firing
that violates public policy.”162 “The subjective component focuses on the
employer's motives”; it requires a showing that the employer's decision to
terminate the employee was “actually . . . motivated by an improper or
impermissible objective.”163 “The plaintiff must show more than just speculation
about the motives for the termination.”164
Although the question of whether FedEx breached the implied covenant of
good faith and fair dealing ordinarily would be for a trier of a fact under Alaska law,
158 Jones v. Cent. Peninsula Gen. Hosp., 779 P.2d 783, 789 (Alaska 1989).
159 Id. at 789 n. 6.
160 Charles v. Interior Reg'l Hous. Auth., 55 P.3d 57, 62 (Alaska 2002) (citation omitted); see also
Thomas v. State, 377 P.3d 939, 948 (Alaska 2016) (“An employer can breach either
component.”).
161 Smith v. Anchorage Sch. Dist., 240 P.3d 834, 844 (Alaska 2010) (quoting Mitchell v. Teck
Cominco Alaska, Inc., 193 P.3d 751, 761 (Alaska 2008)).
162 Montella v. Chugachmiut, 283 F. Supp. 3d 774, 780 (D. Alaska 2017) (citing Crowley, 253
P.3d at 1232).
163 Crowley, 253 P.3d at 1230.
164 Montella, 283 F. Supp. 3d at 780 (citing Thomas, 377 P.3d at 948).
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the summary judgment standard of Federal Rule of Civil Procedure 56 applies in
federal court.165 Under that standard, a non-moving party may not rely on “mere
allegations or denials”; rather, to reach the level of a genuine dispute, the evidence
must be such “that a reasonable jury could return a verdict for the non-moving
party.”166
In Ms. Ashley’s amended complaint—the only filing in which she
substantively addresses her claim for breach of the implied covenant of good faith
and fair dealing—she bases her claim on the five factual allegations outlined
above.167 The Court already has evaluated three of them in detail in Part I of this
order. As discussed there, no reasonable jury could find that FedEx disciplined
Ms. Ashley on false allegations, retaliated against her for filing the ASCHR
complaints, or compelled her to resign her employment. This leaves two factual
allegations that Ms. Ashley maintains support this claim: (1) FedEx defamed Ms.
Ashley, and (2) FedEx subjected Ms. Ashley to economic harm and hardship.168
Neither of these allegations is supported by the record. First, Ms. Ashley
does not allege any facts demonstrating defamation; nor does the record show
165 See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000) (affirming
district court’s application of federal summary judgment standard rather than state’s summary
judgment standard after case removed from state court).
166 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 288 (1968)).
167 Docket 8 at 9 ¶ 29 (Am. Compl.).
168 Docket 8 at 9 ¶ 29 (Am. Compl.).
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that FedEx defamed her. To be defamatory, a statement must first be false.169 As
discussed at length, FedEx has offered legitimate reasons for its statements made
regarding Ms. Ashley in the disciplinary proceedings or before the ASCHR. FedEx
supported each statement by an investigation, record, or factual finding.170 Ms.
Ashley has not met her burden to identify evidence demonstrating that any of
FedEx’s statements were false or defamatory.171
Second, although Ms. Ashley may have faced economic harm and hardship
as a result of her retirement from FedEx, this allegation does not satisfy the
elements for breach of the implied covenant of good faith and fair dealing. To
survive summary judgment, Ms. Ashley must demonstrate a material factual
dispute as to whether FedEx acted unfairly or had an improper motive for
disciplining her.172 As discussed herein, she has not met this burden.173 FedEx
therefore is entitled to summary judgment on Ms. Ashley’s claim for breach of the
169 The elements of defamation pursuant to Alaska law are: “(1) a false and defamatory
statement; (2) an unprivileged publication to a third party; (3) fault amounting at least to
negligence on the part of the publisher; and (4) the existence of either ‘per se’ action ability or
special harm.” MacDonald v. Riggs, 166 P.3d 12, 15 (Alaska 2007) (citation omitted).
170 See, e.g., Docket 21-2 at 56-61 (FedEx February 1, 2018 Inter-office Memorandum re
Workplace Violence); Docket 21-2 at 95-101 (March 1, 2018 FedEx Inter-office Memorandum re
Allegation of Workplace Violence).
171 See Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact cannot be or is genuinely disputed
must support the assertion . . . .”).
172 Crowley, 253 P.3d at 1230; Smith, 240 P.3d at 844.
173 See supra Part I of this order.
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implied covenant of good faith and fair dealing notwithstanding any economic harm
and hardship Ms. Ashley may have experienced after she retired.
IT IS THEREFORE ORDERED THAT FedEx’s Motion for Summary
Judgment at Docket 21 is GRANTED as to all claims brought by Ms. Ashley.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 16th day of March, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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