Alaska Employment Law

Janet Lewis sued the U. S. Air Force over discrimination and retaliation associated with her employment with several Child Development Centers in Alaska.  In addition to Title VII claims against the Air Force, her Complaint asserted various state claims against her uniformed and civilian managers, including IIED, NIED, and negligent supervision.  The Air Force moved to dismiss the state claims, asserting preemption, and the parties cross-moved for summary judgment on Lewis’ Title VII retaliation claim.

U. S. District Judge John Sedwick has now granted the government’s preemption motion, and denied both parties’ Rule 56 motions on retaliation.

Sedwick distinguished two kinds of preemption: that under the 1978 Civil Service Reform Act, and that under Title VII.  For a state claim to avoid CSRA preemption, it must must rest on either (a) action outside the “prohibited personnel action” defined by the CSRA; or (b) action within that definition but taken by a governmental employee lacking authority to take such action.  Sedwick held that two of Lewis’ allegations didn’t constitute “personnel actions”: the refusal of her commanding officers to investigate her allegations of discrimination or retaliation, and the refusual of her co-employees to provide information that would expose misconduct.   Lewis’ allegations about that conduct, thus, survived CSRA preemption.

They didn’t survive Title VII preemption, however, because they fell outside the narrow exception to Title VII preemption: a “highly personal” wrong.  The U. S. Attorney had certified, under 28 USC § 2679(d), that the individual defendants had acted within the scope of their employment, and Lewis’ affidavit, according to Sedwick, failed to rebut the certification, which then became conclusive on the issue of the exception.  

Sedwick analyzed the preemption defenses under Rule 12(b)(1), addressing subject matter jurisdiction.  He noted that Rule 12(b)(1) addresses two kinds of jurisdictional defects - facial insufficiency (sufficiency of pleadings under Rule 8(a)(1)), and factual sufficiency.

Lewis v. Donley, 2009 WL 1492139 (D.Alaska May 28, 2009). 

Nicholas Kittleson of Anchorage represents Lewis.  Susan Lindquist of the Anchorage US Attorney’s office represents the defendants.

Sedwick’s earlier order on some of the same issues is here.