Alaska Employment Law

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Judge Timothy Burgess has issued a major (44-page) opinion resolving multiple FMLA issues, including several left open by the 9th Circuit.  He also addressed claims under the 1866 Civil Rights Act and the state Whistleblower Act.  Burgess granted summary judgment in part for the employee and in part for the employer, Ilisagvik College in Barrow.

Plaintiff Bobbi Wade worked as an instructor under multiple one-year contracts with the College.  She asked for leave several times in the fall of 2003, filed a grievance about the issue in December and then in late January 2004 was non-retained for the following academic year.  

Section 1983: Burgess found that Wade lacked a property right in the renewal of her contract, rejecting her reliance on the following evidence: a letter expressing the College President’s hope that her employment “will be pleasant and long lasting”; a handbook statement that “You’re Part of Our Team”; handbook promises of regular faculty evaluations; and handbook provisions regarding cause requirements for mid-term terminations. 

Alaska Whistleblower Act:  Burgess held that Wade’s internal grievance about her leave requests and about the College’s refusal to reinstate her was “a matter of public concern.” See AS 39.90.140(3).  But he then held that Wade had not satisfied her burden of showing that the grievance was a “substantial” or a “motivating factor” in her termination. 

Wade suggests that the passage of a “mere month” between the filing of her grievance establishes a link between her grievance and the non-renewal of her contract, but she offers no authority in support of this proposition.

Op. at p. 43.  Burgess went on to hold that even if Wade had shown causation, she had failed to address the College’s evidence that it had independent grounds (deficiences in Wade’s credentials and student complaints) to non-renew her contract.

Family and Medical Leave Act:  Burgess held:

     Notice: Wade gave adequate notice of a probable basis for FMLA leave

     Medical certification: An employer’s request for “written notification from a licensed physician” may not be sufficient to satisfy the employer’s duty to issue a written request for medical “certification” under 29 CFR § 825.305.  More importantly,

the Defendants’ failure to give Wade notice of the consequences of not providing an adequate certification precludes them from justifying the denial of her October 2, 2003 leave based on a lack of documentation regarding a serious medical condition.

Op. at 15. 

     30-day notice:  The employer’s handbook provision regarding the employee’s duty to give 30 days notice need not be supplemented by separate notice to an employee.  Here, Wade failed to give 30 days notice of her foreseeable need for leave.

     Interference v.  discrimination:   After distinguishing between the two kinds of FMLA claims, Burgess held:

The mere fact that two months elapsed between[Wade’s] return from leave and the contract non-renewal does not, on its own, suggest that [Wade’s supervisor] based his non-renewal recommendation, even in part, on Wade’s use of FMLA-protected leave.

     Punitive damages:  The 9th Circuit has held that “[t]he FMLA only provides for compensatory damages and not punitive damages.”  Op. at 32.

     Actual and liquidated damages:  Burgess refused to dismiss the employee’s claim for liquidated dmaages, holding that evidence supporting the following created a factual dispute about good faith (a defense to liquidated damages): the employer did not follow its attorney’s advice, and did not explicitly request a medical certification.

     Individual defendants:  Burgess held that FMLA claims may be asserted against officials with “sufficient supervisory authority” over the plaintiff, here, the plaintiff’s direct supervisor and the HR director who oversaw the employer’s response to the leave requests.  Op. at 35-37.

Wade v. Ilisagvik College, 3:05-cv-086-TMB (Order of Mar. 28, 2008)

Linda Johnson of Clapp, Peterson in Anchorage represents plaintiff Wade.  Cynthia Ducey of Delaney, Wiles represents the defendant College.  Peter Gamache represents the North Slope Borough.