Stephens v. Idaho Department of Parks and Recreation
MEMORANDUM DECISION AND ORDER denying 29 Motion to Amend Complaint; granting 32 Motion for Summary Judgment. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
Case No.: 1:10-cv-00267-REB
MEMORANDUM DECISION AND
IDAHO DEPARTMENT OF PARKS AND
RECREATION and JOHN DOES 1-10,
PLAINTIFF’S MOTION TO AMEND
(Docket No. 29)
DEFENDANT’S MOTION FOR
(Docket No. 32)
Currently pending before the Court are (1) Plaintiff’s Motion to Amend Complaint
(Docket No. 29), and (2) Defendant’s Motion for Summary Judgment (Docket No. 32). Having
carefully reviewed the record, participated in oral argument, and otherwise being fully advised,
the Court enters the following Memorandum Decision and Order:
Kristi Stephens (“Plaintiff”) began her career with the Idaho Department of Parks and
Recreation (“Defendant,” “IDPR,” or “Department”) as a seasonal worker in 1986 and, in 1989,
became a park ranger. See Pl.’s Compl., ¶ 19 (Docket No. 1). In the Spring of 2004, Plaintiff
applied for the vacant park manager position at Dworshak State Park near Orofino, Idaho. See
id. at ¶ 21. On July 18, 2004, Plaintiff was appointed as “Park Manager 3" at Dworshak State
Park. See id. at ¶¶ 14 & 22. At the time of her promotion, Plaintiff was the first and only female
to ever be promoted above the position of “Park Manager 1”; Plaintiff was also the first person
MEMORANDUM DECISION AND ORDER - 1
to make the three-step vertical move up from “Ranger” to “Park Manager 3.” See id. at ¶ 22.
Plaintiff was fired on December 16, 2008. See id. at ¶ 46. Plaintiff alleges she was wrongfully
terminated and, in her original Complaint, asserted three claims for relief: (1) gender
discrimination, (2) hostile work environment, and (3) negligent infliction of emotional distress.
See id. at ¶¶ 51-58.
Plaintiff seeks to amend her Complaint to add three additional claims: (1) violation of
civil rights pursuant to 42 U.S.C. § 1983 (denial of 14th Amendment procedural due process
rights); (2) violation of civil rights pursuant to 42 U.S.C. § 1983 (denial of 14th Amendment
substantive due process rights); and (3) breach of implied covenant of good faith and fair
dealing. See Pl.’s Proposed First Am. Compl., ¶¶ 72-84 (Docket No. 29, Att. 2). Defendant
opposes these efforts while also moving for summary judgment on Plaintiff’s gender
discrimination, hostile work environment, and negligent infliction of emotional distress claims.
See Def.’s Mot. for Summ. J. (Docket No. 32).
II. STANDARDS OF LAW
Motion to Amend
Although Rule 15 generally provides a liberally allowed avenue for amending pleadings,
once a scheduling order has been entered pursuant to Rule 16(b), an additional showing of
“good cause” for amendment must be made if the scheduling order deadline for amendment has
passed. See Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (“A party
seeking to amend a pleading after the date specified in the scheduling order must first show good
cause for amendment under Rule 16, then if good cause be shown, the party must demonstrate
that amendment was proper under Rule 15.”). The “good cause” standard under Rule 16 focuses
MEMORANDUM DECISION AND ORDER - 2
primarily on the “diligence of the party seeking the amendment.” See id. at 609. “If the party
seeking the modification was not diligent, the inquiry should end and the motion to modify
should not be granted.” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th
Cir. 2002) (citation and internal quotation marks omitted).
Motion for Summary Judgment
One of the principal purposes of the summary judgment “is to isolate and dispose of
factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is
“not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually
insufficient claims or defenses [can] be isolated and prevented from going to trial with the
attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry
this burden, the moving party need not introduce affirmative evidence (such as affidavits or
deposition excerpts) but may simply point out the absence of evidence to support the nonmoving
party’s case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a
jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond the pleadings
and show “by her affidavits, or by the depositions, answers to interrogatories, or admissions on
file” that a genuine issue of material fact exists. Celotex, 477 U.S. at 324. Only admissible
MEMORANDUM DECISION AND ORDER - 3
evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of
America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed. R. Civ. P. 56(e).
Plaintiff’s Motion to Amend Complaint (Docket No. 29)
Plaintiff argues that, through discovery – in particular, the April 2011 depositions of
Betsy Johnson, Dean Sangrey, and David White – she “discovered additional facts, which[,]
when considered in conjunction with the original allegations in the May 27, 2010 complaint, and
when considered in their own light, warrant the amending of the original complaint.” See Pl.’s
Mem. in Supp. of Mot. to Am., p. 2 (Docket No. 29, Att. 1). Consistent with FRCP 15(a)(2),
Plaintiff “requests the Court’s approval to file the amended complaint because justice so
requires.” See id. at p. 4. However, Plaintiff’s amendment efforts take place nearly six months
after the December 17, 2010 amendment deadline set forth in the Court’s September 2, 2010
Case Management Order. See 9/2/10 CMO (Docket No. 15).1 Therefore, to amend her
pleadings, Plaintiff must actually satisfy the more heightened “good cause” standard under FRCP
16(b)(4). See supra at pp. 2-3 (citing Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified
only for good cause and with the judge’s consent.”)).
Plaintiff maintains that, through the above-referenced depositions, she “discovered that
she was not afforded procedural rights during her termination and that her termination violated
the implied covenant of good faith and fair dealing.” See Pl.’s Mem. in Supp. of Mot. to Am., p.
2 (Docket No. 29, Att. 1). Independent of whether Plaintiff should have already been aware of
The deadlines outlined within the September 2, 2010 Case Management Order were
taken largely from the parties’ August 30, 2010 Stipulated Litigation Plan. See Stip. Lit. Plan
(Docket No. 14). With the Stipulated Litigation Plan, the parties agreed to the December 17,
2010 amendment deadline. See id. at p. 1.
MEMORANDUM DECISION AND ORDER - 4
Defendant’s internal protocol for dismissing an employee (through either her 22-year employ
with the IDPR or as a result of her participation with the administrative process following her
termination) and whether those procedures were in fact followed here, Plaintiff offers no reason
why such information could not have otherwise been discovered before the December 17, 2010
amendment deadline – particularly when considering that Plaintiff first initiated this action on
May 27, 2010. So, while it may be argued that Plaintiff only became aware of additional causes
of action following these depositions, the record contains no justification for her failure to
uncover these alleged circumstances before December 17, 2010 – through either earlier written
discovery or earlier depositions. This lack of diligence augurs against any finding of good cause.
Plaintiff argues, however, that the delay in taking the referenced depositions is not what it
may appear. She contends that an agreement between counsel made in January 2011 called for
the depositions to be taken in late February/early March 2011, but at the request of Defendant’s
counsel, and due to Defendant’s counsel’s trial schedule, the depositions had to be moved to late
April 2011. See Pl.’s Reply in Supp. of Mot. to Am., p. 2 (Docket No. 31). Even if true, these
scheduling changes cannot constitute good cause given that the December 17, 2010 amendment
deadline had already come and gone before the parties even agreed to the referenced deposition
dates in January 2011,2 let alone the actual April 2011 depositions themselves. The relevant time
period was that period between the time the scheduling order was entered, and the deadline in
December for amendment of pleadings.
During oral argument, Plaintiff’s counsel stated that, had the depositions gone forward
when originally scheduled (late February/early March 2011), he would have moved to amend
immediately thereafter. This argument fails to acknowledge the preceding December 17, 2010
amendment deadline – indeed, during oral argument, Plaintiff’s counsel incorrectly stated that
the amendment deadline was “around March 2011" and “certainly” after the originally-scheduled
MEMORANDUM DECISION AND ORDER - 5
The Court accepts Plaintiff’s arguments that facts emerged during depositions that could
support previously-unasserted causes of action. Still, such a circumstance cannot overcome that
party’s lack of diligence in actually (and timely) uncovering those same facts. Even though such
a result may seem harsh, the need for orderly and timely progression of the lawsuit is necessary
and important. Pleadings cannot be a continuously moving target for obvious reasons. The
amendment deadline serves to frame the issues at a fixed point in time so that the parties have an
adequate opportunity to prepare their respective positions moving forward. Even so, the
deadline will not entirely foreclose amendments, so long as the standard of good cause is met to
warrant the amendment. Here, the proffered reasons for the proposed untimely amendment do
not constitute good cause, particularly where a primary element of good cause is due diligence.
Accordingly, Plaintiff’s Motion to Amend Complaint (Docket No. 29) is denied.
Defendant’s Motion for Summary Judgment (Docket No. 32)
The Court next considers Defendant’s motion for summary judgment on each of
Plaintiff’s three remaining causes of action: (1) gender discrimination, (2) hostile work
environment, and (3) negligent infliction of emotional distress.
Plaintiff’s Gender Discrimination Claim
Plaintiff argues that Defendant terminated her because she is female. Under Title VII, an
employer may not discriminate against an individual with respect to her privileges of
employment because of her gender. See 42 U.S.C. § 2000e-2(a). Any such “disparate
treatment” is a violation of federal law, unless a defense also recognized by law would insulate
Under the familiar burden-shifting scheme set out in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), a plaintiff alleging disparate treatment under Title VII must first establish a
MEMORANDUM DECISION AND ORDER - 6
prima facie case of discrimination by offering evidence that “give[s] rise to an inference of
unlawful discrimination.” E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009) (citing
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). A prima facie case may be
established either by (1) providing direct evidence suggesting that the employment decision was
terminated based on an impermissible criterion, or (2) the four-part test laid out in McDonnell
Douglas.3 See id.
Once a prima facie case has been made, “[t]he burden of production, but not persuasion,
then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the
challenged action.” Chuang v. Univ. of Cal. Davis, 225 F.3d 115, 1123-24 (9th Cir. 2000).
If the employer provides such a reason, the plaintiff must then show that the articulated
reason is pretextual “either directly by persuading the [fact-finder] that a discriminatory reason
more likely motivated the employer[,] or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affairs. V. Burdine, 450 U.S. 248,
256 (1981). When the evidence is direct, “‘[w]e require very little evidence to survive summary
judgment’ in a discrimination case.” Lam v. Univ. of Hawaii, 40 F.3d 1551, 1564 (9th Cir. 1994)
(quoting Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir. 1991)).
“But when the plaintiff relies on circumstantial evidence, that evidence must be specific and
substantial to defeat the employer’s motion for summary judgment.” Coghlan v. Am. Seafoods
Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005).
To establish a prima facie case of gender discrimination under the McDonnell Douglas
framework, a plaintiff must show that (1) she belongs to a protected class, (2) she was qualified
for the position, (3) she was subjected to an adverse employment action, and (4) similarly
situated men were treated more favorably. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1062 (9th Cir. 2002).
MEMORANDUM DECISION AND ORDER - 7
Plaintiff’s Burden: Establishing a Prima Facie Case
Defendant obliquely argues in a footnote that Plaintiff is incapable of establishing the
prima facie elements of her disparate treatment claim, stating only that, “given her significant
performance deficiencies in the core administrative duties as a Park Manager, there is no
evidence that she was fully qualified for the position.” See Def.’s Mem. in Supp. of Mot. for
Summ. J., p. 3 n.2 (Docket No. 32, Att. 2). The Court disagrees.
As to the discrete issue of Plaintiff’s ability to establish a prima facie case of disparate
treatment, Defendant merely disputes Plaintiff’s qualifications. On this point, it must be
recognized that Plaintiff’s supervisor, David White (“Supervisor White”), testified that Plaintiff
was, in fact, qualified to be a Park Manager. See White Depo. at 78:22-79:14 (Docket No. 36,
Att. 5). Additionally, Plaintiff had been with the IDPR for 22 years, including over four years as
a Park Manager, prior to her termination. When construing all disputed facts in Plaintiff’s favor,
Plaintiff was qualified to be a Park Manager.
It is undisputed that Plaintiff is a woman. It is also undisputed that Plaintiff was
subjected to an adverse employment action by virtue of her termination. To the extent she was
fired while other similarly-situated male Park Managers were not fired (Defendant does not
dispute this alleged detail), it would appear that such men were treated more favorably. These
factors, along with Plaintiff’s qualifications to be a Park Manager, combine to establish a prima
facie case for disparate treatment. Plaintiff’s arguments in this respect are therefore persuasive.
See Pl.’s Resp. to Def.’s Mot. for Summ. J., p. 3 (Docket No. 36).
Defendant’s Burden: Legitimate, Non-Discriminatory Reason for
The thrust of Defendant’s challenge to Plaintiff’s gender discrimination claim is that the
IDPR had “legitimate, non-discriminatory reasons for dismissing [Plaintiff] after more than two
MEMORANDUM DECISION AND ORDER - 8
years of poor performance.” See Def.’s Mem. in Supp. of Mot. for Summ. J., p. 3 (Docket No.
32, Att. 2). According to Defendants, Plaintiff’s poor performance can be summarized as: (1)
Plaintiff’s failure to follow Department fiscal and revenue policies, (2) Plaintiff’s failure to
follow directives related to employee overtime, (3) Plaintiff’s lack of organization, (4) Plaintiff’s
inability to adequately communicate with IDPR management and fiscal staff, and (5) Plaintiff’s
failure to successfully discharge the core responsibilities of her position. See id. at p. 4.
Alleged Failure to Follow Department Fiscal and Revenue
Defendants argue that, as Park Manager, Plaintiff was repeatedly told to follow internal
fiscal policies, to no avail. See id. For example, Supervisor White generally testifies:
On July 22, 2005, I began receiving information from the IDPR fiscal offices in
Boise that Dworshak Park was not completing reports and purchase transmittals as
required, nor was Ms. Stephens responding to staff requests to complete these
processes. I called Ms. Stephens to discuss an inventory report that the fiscal office
was trying to get her to complete and forward on for processing. She told me she
had sent the report to Boise but it must have been lost and she had followed up with
a call to the fiscal offices, but was unable to reach the person who had sent her the
notice and was requesting the report. She also indicated she had not kept a copy of
her report for her records. This type of response was typical during Ms. Stephens’
tenure as Park Manager. She frequently did not return phone calls or e-mails or keep
me or other apprised of what steps she had taken to resolve problems after she was
contacted by Department staff. This would necessitate that I or someone else followup with her to find out the status of the matter. She would usually tell me she had
taken care of the problem – even if she had not – or that the document was either in
the mail or the IDPR staff person had “lost” her documentation. Typically, I would
explain to her that it was important that she respond to e-mails and phone calls
immediately and let people know what she was doing to address problems and that
when she did not respond, people assumed she was ignoring the problem. This
continued to be a pattern and was ultimately one of the performance deficiencies that
led to the decision to dismiss her.
See White Aff. at ¶ 13 (Docket No. 32, Att. 8).
Relatedly, on her 2007 Performance Evaluation Form (completed in April 2008), Plaintiff
received an overall “Does Not Achieve Performance Standards” rating. See Ex. 23 to White Aff.
MEMORANDUM DECISION AND ORDER - 9
at ¶ 63 (Docket No. 32, Att. 10). Within that evaluation form, Plaintiff was critiqued on various
management standards. With respect to “Communication,” the evaluation form indicates a
“Does Not Achieve Performance Standards” and reads in relevant part:
You have not done a very good job of responding to requests by myself or
Boise HQ which is evidenced in the many emails and phone calls that were
not responded to; some of which resulted in fiscal issues prolonging beyond
an acceptable amount of time.
These issues (“Ensure that all administrative duties from providing input to
processing purchases to reviewing emails are completed in the time required
assessing overall organization and process followed at the park.”) were
identified in your 2007 Work Plan as a goal. Each time I confronted you
about this, you made excuses and indicated that it would improve.
Unfortunately, it has not. You have to make improvements in this area so
that internal issues both with local staff and the region/Boise are addressed
in a timely manner.
See id. With respect to “Decision Making/Problem Solving,” the evaluation form indicates a
“Does Not Achieve Performance Standards” and similarly reads in relevant part:
[Y]ou have not assessed and resolved the problems that have persisted since
2005 associated with prompt and appropriate purchasing processes. The
process had improved for a time based upon 2005 changes. We have
discussed these issues on several occasions and I summarized the problem
and requested a plan of action and change in a December 2006 Memo to you.
Unfortunately, issues associated with timeliness and policy adherence have
not improved overall.
In addition to this, you allowed an issue over revenue reconciliation to go
unaddressed for several months even though you were contacted by fiscal on
several occasions to rectify the problem.
And lastly, you have not been able to monitor your budget due to not having
access to pre-stars so you have not been managing allocations effectively.
The department provided you training both in Boise with fiscal and with
region staff on-site but with minimal improvement on your part. You have
not been responsive nor have you been proactive in resolving these various
issues. This is unacceptable of a Park manager of this level and with your
MEMORANDUM DECISION AND ORDER - 10
See id. With respect to “Results Focus,” the evaluation form indicates a “Does Not Achieve
Performance Standards” and again reads in relevant part:
[A]s previously indicated, you did not overcome the communication,
purchasing, and revenue reconciling obstacles nor have you taken full
responsibility for them by making excuses and not making necessary
You have not addressed the identified 2006 Evaluation specific performance
changes – . . . “Ensure that all purchases and their processing adheres to
policy and procedures. . . . .” nor the 2007 Goals – . . . “Ensure that all
administrative duties from providing input to processing purchases to
reviewing emails are completed in the time required . . . .”
The department provided you fiscal training both at HQ in Boise and at the
park with Region staff but you have not been able to parlay this into the
required results. We have also spoken about these issues on several
occasions and were told that improvements needed to occur and you agreed.
As previously stated, this was documented to you in a December 2006 memo.
Unfortunately, you have not demonstrated the ability to overcome the
obstacles precluding you from accomplishing these basic requirements of a
Three months after her 2007 Performance Evaluation, on July 2, 2008, Supervisor White
issued a “Notice of Unacceptable Performance” to Plaintiff, formally notifying her that “[her]
current unacceptable performance in [her] position as a Park Manager 3 will not be allowed to
continue without significant and immediate improvement.” See Ex. 29 to White Aff. at ¶ 70
(Docket No. 32, Att. 10). Therein, Plaintiff was reminded that “[p]rocessing transactions is an
It should be noted that the 2007 Performance Evaluation also contains “Achieves
Performance Standards” ratings for the “Managing Performance,” “Customer Focus,” and “Work
Environment/Safety” categories. See Ex. 23 to White Aff. at ¶ 63 (Docket No. 32, Att. 10).
Still, with respect to “Customer Focus,” the evaluation form states: “However, as previously
stated, you have done a poor job of addressing our other customers in our Boise staff and those
that we purchase from.” See id.
MEMORANDUM DECISION AND ORDER - 11
important responsibility,” but that, “[u]nfortunately [she] ha[s] struggled with this responsibility
in conjunction with other day-to-day duties from the beginning.” See id. Supervisor White then
outlined the historical “documentation and efforts” provided thus far to help Plaintiff with
identifying these issues and what was needed to correct them, highlighting the following:
August 1, 2005: I informed you that various routine processes were not being
completed accurately or timely; hence, region staff would conduct on-site
training and you were to set up a two to three day session with Boise
Headquarters’ fiscal staff, which was done and documented in your 2005
annual evaluation. See id.; see also White Aff. at ¶ 9 (Docket No. 32, Att. 8).
2005 Annual Evaluation: I noted that you were struggling with ensuring that
day-to-day tasks were completed thoroughly and in a timely manner. Both
fiscal staff from Boise headquarters and Region staff came to the park and
provided on-site training for you and staff to ensure that you understood the
requirements and the relevant processes. See id.; see also Ex. 3 to White Aff.
at ¶¶ 10 & 21 (Docket No. 32, Att. 9).
June 30, 2006: I authorized fiscal to approve and close transactions older
than 5-31-06 due to your inability to provide proper documentation. I
assured them that necessary actions were taking place to rectify future
problems. I notified you of my actions as well as my expectations that you
would follow-up appropriately. See id.; see also Ex. 5 to White Aff. at ¶ 24
(Docket No. 32, Att. 9).
November 28, 2006: You were notified about outstanding Dworshak Pcard
transactions three to five months in arrears. Of the 33 identified for the
Region, 25 or 76% of them were for Dworshak with 11 or 33% of them yours
with the oldest being 5+ months. See id.; see also White Aff. at ¶ 30 (Docket
No. 32, Att. 8).
December 4, 2006: After discussing your unacceptable administrative
performance with you, I followed up with documentation and our agreedupon course of action for you to review policies and procedures with staff,
obtain training for both you and staff, and ensure that all administrative
processes are completed accurately and thoroughly on a weekly basis
utilizing a processing check list. See id.; see also Ex. 8 to White Aff. at ¶ 32
(Docket No. 32, Att. 9).
2006 Annual Evaluation: I noted that you had obtained training from staff in
Boise as well as from Region in fiscal purchasing procedures. In addition,
you did assess current processes to identify problems which resulted in a
MEMORANDUM DECISION AND ORDER - 12
checklist to ensure all staff complete purchases and associated documents by
policy and procedure. However, purchasing procedures were not adhered to
most of the year even after the problems were identified and addressed. See
id.; see also Ex. 10 to White Aff. at ¶ 36 (Docket No. 32, Att. 9).
In the annual staff survey, your staff identified that many of the park’s
administrative functions are unorganized, which negatively impact the ability
to process purchases appropriately. This unacceptable performance resulted
in my documenting these problems as a formal written reprimand to you on
12-4-06 as noted above. See id.; see also Ex. 8 to White Aff. at ¶ 32 (Docket
No. 32, Att. 9).
February 14, 2007: You were notified of Dworshak transactions over 30 days
old that had not been approved. Of the 56 identified for the Region, 13 or
23% were Dworshak’s and 8 or 14% were yours with the oldest being 2+
months old. See id.; see also White Aff. at ¶ 37 (Docket No. 32, Att. 8).
July 5, 2007: In an email, you were asked to provide additional information
for a 2+ month old meal purchase that was originally requested from you on
6-19-08 and followed up with several phone messages that you had not
responded to. See id.; see also Ex. 15 to White Aff. at ¶ 48 (Docket No. 32,
November 19, 2007: I emailed you as follow up to an unreturned phone
message that I left you 7+ days previously. I was concerned about numerous
lost receipt approval requests, incomplete documents sent to fiscal, and
unreconciled revenue from the summer that fiscal and been trying to rectify
with you. I also noted that your current performance was unacceptable and
change needed to occur. See id.; see also Ex. 16 to White Aff. at ¶ 52
(Docket No. 32, Att. 10).
December 5, 2007: You were provided a list of Dworshak transactions over
30 days old that had not been approved. Of the 110 identified for the Region,
69 or 63% were Dworshak’s and 38 or 34% were yours with the oldest being
9+ months old. See id.; see also Ex. 17 to White Aff. at ¶ 53 (Docket No. 32,
December 31, 2007: You were notified that as of the end of the 2007
calendar year the park only had 4.5% of its allocation remaining. To resolve
this, you recoded several transactions from the park to the marina. In
general, these changes were somewhat questionable, so you were required to
provide justification and ensure that these and future transactions were coded
accurately. See id.; see also Ex. 18 to White Aff. at ¶ 55 (Docket No. 32, Att.
MEMORANDUM DECISION AND ORDER - 13
2007 Annual evaluation: you received an overall rating of “Does not Achieve
Performance Expectations.” As noted above, you did not complete or
perform up to expectations on these administrative functions of your position.
You have been unresponsive to requests from me and from Boise HQ staff
as evidenced by the many emails and phone calls not answered. You have
not provided accurate, timely, or complete documentation on purchases and
other fiscal issues. During the last two years, each time I discussed this with
you, you made excuses and indicated that it would improve. Unfortunately,
it has not. In addition, I noted in your 2008 work plan that you were to
provide a plan of action to me by 4/18/08 outlining how you would address
these unresolved issues. It is now July 2008 and I have not received any plan
of action. See id.; see also Ex. 23 to White Aff. at ¶ 63 (Docket No. 32, Att.
May 30, 2008: You were provided a list of transmittals that were outstanding
with the oldest being almost three months old and with the end of the fiscal
year approaching the need to reconcile them. There were a total of 18
transactions and all were for purchases you made. See id.; see also Ex. 26 to
White Aff. at ¶ 67 (Docket No. 32, Att. 10).
June 19, 2008: You were provided a list of 61 transactions that were
outstanding for the part with the oldest being 3+ months old. Of the total, 20
or 33% were purchases in your name. As of 6-26-08, fiscal had not received
the proper paperwork to reconcile 51 (84%) of the transactions. See id.; see
also Exs. 27 & 28 to White Aff. at ¶ 68 (Docket No. 32, Att. 10).
Supervisor White then required Plaintiff to (1) develop a “Plan of Action” to address and rectify
prompt and appropriate purchasing process, applicable revenue reconciliation, and effective
budget monitoring; (2) reconcile all travel expenses within 10 work days of the ending travel
date; (3) reconcile all purchases within 30 days of the date of purchase; (4) adhere to all
purchasing policies, procedures, rules, and regulations; (5) provide written justification within
two days of any required deviation from processing transactions; (6) monitor the various
Dworshak budgets weekly to ensure effective and efficient use of funds and that transactions are
coded out to the appropriate, applicable project; and (7) respond to all requests within three days.
See id. Supervisor White indicated that, if Plaintiff was unable to meet these requirements, she
MEMORANDUM DECISION AND ORDER - 14
could face termination. See id. (“If you are unable to adhere to all of these directives in
conjunction with your other responsibilities, it will be necessary to pursue further action, up to
and including termination.”).
According to Defendant, these problems continued, with other IDPR staff complaining
that expenditures/transmittals were still not being processed correctly. See Def.’s Mem. in Supp.
of Mot. for Summ. J., p. 5 (Docket No. 32, Att. 2) (citing Exs. 33 & 37 to White Aff. at ¶¶ 78 &
83 (Docket No. 32, Att. 11)). On September 15, 2008, Defendant issued a “Notice of
Contemplated Action,” informing Plaintiff that she may be dismissed in light of her alleged
inability to comply with internal fiscal and revenue policies, while placing her on administrative
leave with pay. See Ex. 39 to White Aff. at ¶ 85 (Docket No. 32, Att. 11). While on
administrative leave, IDPR staff sorted through Plaintiff’s office, finding “numerous invoices
that were in arrears, P-card purchases that were incomplete and not timely processed, travel
vouchers that had not been timely or properly processed, and checks that had not been deposited
in Department accounts.” See Def.’s Mem. in Supp. of Mot. for Summ. J., pp. 5-6 (Docket No.
32, Att. 2) (citing Exs. 41-44 to White Aff. at ¶¶ 88, 90, & 92 (Docket No. 32, Att. 11)).
Alleged Failure to Follow Directives Related to Employee
After learning in July 2005 that Plaintiff and her employees were accruing overtime
above policy limits without authorization, Supervisor White counseled Plaintiff on “the need to
organize and schedule staff work assignments and projects to effectively manage staff hours and
personnel budgets, to minimize the use of employee overtime and reduce additional personnel
costs, and to follow Department policies for overtime use and approval.” See id. at p. 6 (citing
White Aff. at ¶¶ 16-18 (Docket No. 32, Att. 8)). In May 2007, Supervisor White again warned
MEMORANDUM DECISION AND ORDER - 15
Plaintiff about the need to manage employee overtime. See Ex. 13 to White Aff. at ¶ 45 (Docket
No. 32, Att. 10) (“You and your staff are building up a lot of comp time prior to the busy season.
Hence, you need to managing schedules so that we do not run into any problems. Thanks.”).
According to Defendants, these issues were not resolved as employees continued to exceed
overtime limits without proper authorization. See Def.’s Mem. in Supp. of Mot. for Summ. J., p.
6 (Docket No. 32, Att. 2).
Alleged Lack of Organization
Part and parcel with Defendants’ claim that Plaintiff lacked the fiscal management skills
to effectively accomplish her duties as Park Manager, Defendants assert that Plaintiff
“continually displayed a lack of organization in discharging her duties as Manager of Dworshak
Park.” See id. (citing White Aff. at ¶ 36 (Docket No. 32, Att.8)). In addition to Supervisor
White’s testimony, Chuck Gross (a former Park Ranger hired, trained, and supervised by
Plaintiff at Dworshak State Park) also testified that Plaintiff’s organizational skills were lacking:
One of the primary problems at the Park was that management of park
activities seemed chaotic and disorganized at times. Ms. Stephens had many
good ideas for activities at the park and she was very good at working with
the public and promoting the Park, however, she was poor at managing some
of the details and following through with the time it takes to properly plan
and cost out park events. Often she did not coordinate activities well with
her staff. She seldom gave me feedback about how I was doing and what I
needed to do to keep park operations under control. Her approach to Park
activities was to delegate a lot of responsibility to the rangers, which forced
us to be reactive more than proactive. She expected us to be flexible and
adaptable to unforeseen issues; however more prior planning and staff
meetings would have helped to eliminate many of the stresses we felt. After
projects were completed, she did not seem to spend the time to analyze how
we had done, but wanted to move on to the next event or issue. The staff was
concerned that we needed to spend more time on routine operations before
we took on events at the park. We felt overwhelmed at times with the
challenges of the daily workload and the calendar of special events.
MEMORANDUM DECISION AND ORDER - 16
Work assignments to staff were often done more by crisis management rather
than being planned in advance. Ms. Stephens seemed at times to me to be
overwhelmed by the management responsibilities of the Park.
The result of her management style created many problems and unnecessary
stresses for the three-person Ranger staff and seasonal help. She did not
seem to prioritize projects, develop systems or manage staff time effectively.
After Ms. Stephens was placed on administrative leave in September 2009,
Rangers Don and Kim West and I met with Mr. White to discuss how we
would manage Park activities in her absence. We were not told the specifics
of her absence and we did not know that the Department had concerns about
her management of the park. However, we all discussed with Mr. White our
frustrations with her administrative and organizational skills and the stresses
and inefficiencies this caused for staff.
There are always unforeseen last minute problems that can come up at any
Park. However, the problem we experienced when Ms. Stephens was the
Park Manager were generally the result of her inability to effectively plan or
proactively manage potential unforeseen problems and follow through with
the details of the project. These unnecessary problems frustrated staff and we
attempted to talk with her on occasion about the lack of planning and our
desire to complete core responsibilities of the park rather than taking on more
new responsibilities. She did not seem to accept responsibility for mistakes
and frequently blamed others in the Department for her failures. While Ms.
Stephens had many good qualities, I do not believe she possessed the skills
necessary to be an effective Park Manager.
See Gross Aff. at ¶¶ 5, 6, 11, & 17 (Docket No. 32, Att. 12).5 Indeed, only after Plaintiff was
placed on administrative leave did Defendant claim to become aware of the true “extent of the
disorganization and its deleterious effects on the management of the Park” when IDPR staff
“went through piles of papers on her desk and found invoices that were months old that had not
Although critical of Plaintiff’s organizational skills, Mr. Gross (and two other Park
Rangers) submitted a letter to Sangrey, explaining that Plaintiff “possessed some good qualities
that were valuable to the Department” and urging that, if possible, she be retained in some
capacity. See Gross Aff. at ¶ 18 (Docket No. 32, Att. 12); see also Ex. 40 to White Aff. at ¶ 68
(Docket No. 32, Att. 10).
MEMORANDUM DECISION AND ORDER - 17
been paid, travel vouchers that had not been processed, checks that had not been deposited, and
P-card transmittals that were over the deadlines for processing.” See Def.’s Mem. in Supp. of
Mot. for Summ. J., p. 7 (Docket No. 32, Att. 2) (citing White Aff. at ¶¶ 88-92 (Docket No. 32,
Att. 8)); see also Gross Aff. at ¶¶ 12-14 (Docket No. 32, Att. 12).
Alleged Inability to Adequately Communicate with IDPR
Management and Fiscal Staff
Defendant also contends that Plaintiff frequently failed to timely respond (if at all) to
correspondence from Department personnel. See Def.’s Mem. in Supp. of Mot. for Summ. J., p.
7 (Docket No. 32, Att. 2) (citing White Aff. at ¶¶ 36, 41, 42, 50, 53, 58, 70, 89 (Docket No. 32,
Att. 8); Gross Aff. at ¶ 5 (Docket No. 32, Att. 12)). Such communication issues were first
identified to Plaintiff in her 2005 performance evaluation after her first full year as Park
Manager. See Ex. 3 to White Aff. at ¶ 10 (Docket No. 32, Att. 9). Despite occasional
improvements, these issues continued up until Plaintiff was let go in 2008. See Ex. 23 to White
Aff. at ¶ 63 (Docket No. 32, Att. 10); see also Ex. 29 to White Aff. at ¶ 70 (Docket No. 32, Att.
Alleged Failure to Successfully Discharge Core Responsibilities
of the Park Manager Position
As Park Manager, Plaintiff was responsible for managing the Park’s “complex financial
operation” by, among other things, “administering agency policies and procedures” and
“developing and monitoring budgets.” See Def.’s Mem. in Supp. of Mot. for Summ. J., p. 9
(Docket No. 32, Att. 2). According to Defendant, Plaintiff’s ineffectiveness at so managing the
fiscal side of Park operations – attributable, presumably, to Plaintiff’s alleged inability to follow
IDPR’s fiscal/revenue directives, lack of organization, and difficulty communicating with fiscal
MEMORANDUM DECISION AND ORDER - 18
staff (see supra at pp. 9-18) – led to insufficient funds for certain park budgets in both 2007 and
2008. See id. at p. 8 (citing White Aff. at ¶¶ 55-57 & 100 (Docket No. 32, Att. 8)).
Plaintiff disagrees with Defendant’s critical account of her professional aptitude as a Park
Manager. See Pl.’s Resp. to Def.’s Mot. for Summ. J., pp. 4-9 (Docket No. 36). Her subjective
disagreement alone, however, cannot completely discount the legitimate, non-discriminatory
reasons that Defendant contends led to Plaintiff’s termination. Instead, the burden shifts to
Plaintiff to produce evidence that Defendant’s reasons were pretextual. See Dominguez-Curry v.
Nev. Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005) (to survive summary judgment, plaintiff
“must produce sufficient evidence to raise a genuine issue of material fact as to whether the
employer’s proffered nondiscriminatory reason is merely a pretext for discrimination.”).
Plaintiff’s Burden: Reasons for Dismissal are Pretextual
Once legitimate reasons for discharge are set forth, any presumption of unlawful
discrimination “simply drops out of the picture” and Plaintiff “bears the ultimate burden of
persuading the [C]ourt that the stated reason[s] for the discharge w[ere] false and the true reason
for the discharge was unlawful sex discrimination.” Bradley v. Harcourt, Brace & Co., 104 F.3d
267, 270 (9th Cir. 1996) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).
“To avoid summary judgment, Plaintiff ‘must do more than establish a prima facie case and deny
the credibility of the [Defendant’s] witnesses.’” Id. (quoting Wallis v. J.R. Simplot Co., 26 F.3d
885, 890 (9th Cir. 1994)). “She must produce ‘specific, substantial evidence of pretext.’” Id.
Here, Plaintiff has not offered any evidence of pretext. She has not mentioned the word
“pretext” in her briefing. Instead, Plaintiff argues that, in fact, she followed Department fiscal
MEMORANDUM DECISION AND ORDER - 19
and revenue policies (see Pl.’s Resp. to Def.’s Mot. for Summ. J., pp. 4-6 (Docket No. 36));6 she
followed directives and properly managed overtime (see id. at pp. 6-7); 7 there was no lack of
organization in her management style (see id. at pp. 7-8);8 she adequately communicated with
IDPR management and fiscal staff (see id. at p. 8);9 and she successfully discharged the core
responsibilities of her position (see id. at pp. 8-9).10
But this is not enough. See Bradley, 104 F.3d at 270 (“However, an employee’s
subjective personal judgments of her competence alone do not raise a genuine issue of material
Plaintiff does not outright dispute Defendant’s specific criticisms in this particular
respect, but argues that she was “short-staffed,” had to use the “antiquated and ineffective
communications architecture available to her,” and “the incompetence of IDPR’s Fiscal
Department” contributed to the loss or misplacement of documents. See Pl.’s Resp. to Def.’s
Mot. for Summ. J., pp. 5-6 (Docket No. 36).
Plaintiff argues generally that “the shortage of manpower at Dworshak State Park
called for the use of overtime which was at times questioned and misunderstood by David
White.” See Pl.’s Resp. to Def.’s Mot. for Summ. J., p. 6 (Docket No. 36). More specifically,
Plaintiff claims that increases in the use of overtime in July of 2008 were attributable to large
fluctuations in water levels in the reservoir, having to travel to the North Regional Office at
Supervisor White’s direction, and needing to attend the funeral of a volunteer employee. See id.
at pp. 6-7.
Plaintiff states matter-of-factly that “it was her organizational acumen that allowed her
to successfully work with the disorganized and dysfunctional IDPR fiscal section” and that she
“nevertheless complied with IDPR’s management program and organized her office
accordingly.” See Pl.’s Resp. to Def.’s Mot. for Summ. J., p. 7 (Docket No. 36).
Plaintiff admits that “communication was lacking” between her and Supervisor White.
Pl.’s Resp. to Def.’s Mot. for Summ. J., pp. 8 (Docket No. 36). Still, she claims that she was
able to adequately communicate with IDPR despite Dworshak park having “a myriad of
problems with the communication systems” and “IDPR Fiscal Department’s own problems.”
Plaintiff maintains that the basis for Defendant’s claim in this respect is premised upon
materials created while she was on administrative or approved leave. See Pl.’s Resp. to Def.’s
Mot. for Summ. J., p. 9 (Docket No. 36). Even so, Plaintiff attempts to show through her own
staff “survey analysis” that she actually out-performed some of her peers in 2004-2006, and all
of her peers in 2007. See id. (citing Ex. I to Stephens Aff. at ¶¶ 83 & 85 (Docket No. 36, Att.
MEMORANDUM DECISION AND ORDER - 20
fact.”) (citing Schuler v. Chronicle Broadcasting Co., Inc., 793 F.2d 1010, 1011 (9th Cir. 1986)).
Aside from disputing Defendant’s reasons for terminating her, Plaintiff has failed to introduce
any persuasive, material, evidence11 from which a reasonable jury could conclude that Defendant
undertook the challenged employment action due to her gender. Plaintiff felt that she was
wrongly treated by Supervisor White and/or that Supervisor White’s attitude, generally, affected
how he dealt with her. But her legal claim of discrimination requires more. Otherwise, any
adverse employment action would necessarily amount to pretext. Perhaps if no individuals,
beyond Supervisor White, contributed evidence of Plaintiff’s deficiencies, combined with a
series of suspicious actions, the inference that might otherwise be drawn could be enough to
defeat summary judgment. But that is not the case here.
Thus, because Plaintiff has not produced any evidence showing Defendant’s proffered
reasons were pretexts for an improper discriminatory motive, Defendant’s summary judgment in
Plaintiff, herself, prepared a “survey analysis” in an attempt to prove disparate
treatment. See Ex. I to Stephens Aff. at ¶¶ 83 & 85 (Docket No. 36, Att. 19). However, as
Defendant points out, the information within the referenced surveys was solicited by Supervisor
White from subordinate employees regarding their Park Managers in the North Region. See
Def.’s Reply in Supp. of Mot. for Summ. J., p. 6 (Docket No. 37). Therefore, regardless of the
manner in which Supervisor White interpreted these results for the purpose of conducting
Plaintiff’s yearly evaluations, the survey information cannot speak to those administrative
matters unique to a Park Manager and not known to the surveyed employees – namely,
Plaintiff’s ability to adhere to Department fiscal policies.
Moreover, during oral argument, and framed in the context of Bradley, the undersigned
asked Plaintiff’s counsel what specific, substantial evidence of pretext – independent of any
subjective belief of competent job performance – existed in this case. Plaintiff’s counsel
responded that Plaintiff was never properly mentored. In the Court’s mind, this is insufficient
when recognizing that mentoring is not needed (or, at least, should not be needed) before
understanding that checks must be timely processed pursuant to internal protocols – particularly
when overseeing resource management, including fiscal responsibilities, at Dworshak State Park.
MEMORANDUM DECISION AND ORDER - 21
this respect is granted.12 See Bradley, 104 F.3d at 271 (affirming district court’s summary
judgment on sex discrimination claim when confronted only with evidence of plaintiff’s
subjective accounts of job performance). Plaintiff’s gender discrimination claim is dismissed.
Plaintiff’s Hostile Work Environment Claim
To survive summary judgment on her hostile work environment claim, Plaintiff must
raise genuine issues of material fact that (1) she was subjected to verbal or physical harassment
due to her gender, (2) the harassment was unwelcome, and (3) the harassment was sufficiently
severe or pervasive to alter the conditions of her employment and create an abusive work
environment. Collier v. Turner Indus. Group, L.L.C., 2011 WL 2517020, *10 (D. Idaho 2011)
(citing Kortan v. California Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000)). Plaintiff must
show that the conduct at issue was both objectively and subjectively offensive: she must show
that a reasonable person would find the work environment to be “hostile or abusive,” and that
she in fact did perceive it to be so. Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787
(1998)). The Ninth Circuit has held that, although conduct involving sexually-explicit words or
acts is one way to prove hostile work environment, it is not the only way. The ultimate issue is
whether an employee is subjected to hostile conduct based on gender. Id. at *11 (citing EEOC v.
National Educ. Ass’n, Alaska, 422 F.3d 840, 844-45 (9th Cir. 2005)). Thus, the lack of any
particularly sexually-explicit behavior is not fatal to a hostile work environment claim, even
though such behavior can certainly be evidence of such a hostile work environment.
In reaching this decision, the Court makes no determination on either (1) the
preclusive effect, if any, of the Idaho Personnel Commission’s June 17, 2009 Order (see Ex. 2 to
Benjamin Aff. at ¶ 2 (Docket No. 32, Att. 4)), or (2) Defendant’s “same actor” defense (see
Def.’s Mem. in Supp. of Mot. for Summ. J., pp. 10-11 (Docket No. 32, Att. 2)).
MEMORANDUM DECISION AND ORDER - 22
Plaintiff’s hostile work environment claim consists of two distinct forms: (1) that IDPR’s
overall organizational structure is oppressive to women and creates a de facto hostile work
environment (see Pl.’s Resp. to Def.’s Mot. for Summ. J., p. 11 (Docket No. 36)); and, (2) that
Plaintiff was individually subjected to abuse due to her gender. See id. at p. 12. Based upon the
existing record, the Court disagrees.
To state that IDPR itself fosters a hostile work environment by virtue of an alleged “male
dominated culture that has traditionally made it difficult for women to advance in position and
responsibility” (see id. at p. 11) overlooks several important realities. First, and most obviously,
Plaintiff herself was promoted from Park Ranger to Park Manager in 2004. Moreover, the Court
takes judicial notice that, from 1987 to 2001, Yvonne Ferrell was IDPR’s fifth Director, after
having served as Deputy Director in the Washington State Parks and Recreation division – at the
time she was hired, Ms. Ferrell was the only female Director in the nation. Eight years and three
Directors later, Nancy Merrill became the Director in 2009 and is currently IDPR’s Director as
acknowledged by Plaintiff’s counsel during oral argument. These facts should not be interpreted
as forever foreclosing a hostile work environment claim against IDPR; however, when such a
claim is premised upon an alleged culture that discourages the placement and advancement of
women in positions of responsibility, these facts understandably reveal the opposite to be true.
In this respect, then, Plaintiff’s claim is without merit.
As to Plaintiff’s more individualized claims of verbal abuse, Plaintiff appears to argue
that Supervisor White’s criticisms of her work performance created an actionable hostile work
environment. See Compl. at ¶¶ 30, 32 (Docket No. 1). In particular, Plaintiff cites the following
as evidence of “unwanted verbal abuse because of her gender”:
MEMORANDUM DECISION AND ORDER - 23
That on many occasions, I informed Mr. David White that both the PreSTARS and the STARS communications architecture was woefully
inadequate at Dworshak. See Stephens Aff. at ¶ 26 (Docket No. 36, Att. 10).
That I brought the problem of the Pre-STARS and the STARS systems
problems directly to my supervisor, and management Information Systems
personnel. See id. at ¶ 27.
That rather than take my advice, David White chastised me and asked in
words to the effect of: “Why are you not finding a way to accomplish the
assignment rather than making excuses?” See id. at ¶ 28.
That when I did go to Mr. White with the problems of Pre-STARS and the
STARS systems, David White would on more than one occasion say the
following or words to the effect that: “It doesn’t matter what the technical
problems were, it was my job to just deal with it and fix the problem.” See
id. at ¶ 29.
That by chastising me rather than working on the problem, I felt that David
White did not want me to be successful in my efforts to run the park
efficiently, rather he wanted to make sure the process was as difficult as
possible. I felt that asking for adequate equipment to complete my duties
was not an “excuse.” See id. at ¶ 30.
That even though I told David White how difficult it was to function in an
environment where the computer systems barely functioned, he refused to
spend the time at the park to understand the challenges, or even listen to me
when I advised him of the issues with the fiscal department of IDPR and the
obsolete communications equipment which I was forced to use at Dworshak
State Park. See id. at ¶ 32.
That when I approached David White and asked for assistance in finding a
solution to the problems concerning administrative aid and the
communications difficulties, David White simply told me in words to the
effect of “You are just making excuses” or “The previous managers
managed without additional help.” See id. at ¶ 34.
See Pl.’s Resp. to Def.’s Mot. for Summ. J., p. 12 (Docket No. 36). Simply put, these exchanges,
while no-doubt biting and unpleasant to Plaintiff, do not rise to the level of the severe or
pervasive conduct needed to support a hostile work environment claim. Further, nothing in these
MEMORANDUM DECISION AND ORDER - 24
examples suggests that Supervisor White’s apparent frustration with Plaintiff was directed at
Plaintiff because of her gender, rather than some other work-related reason. To this end, the
record reflects that Plaintiff was not always the recipient of Supervisor White’s allegedly
captious eye – she received overall favorable performance evaluations at the beginning of her
term as Park Manager, and other, male employees, were the subject of Supervisor White’s
“birddogging” when it came to IDPR fiscal matters. See, e.g., Exs. 2, 3, & 11 of White Aff. at
¶¶ 5, 10, & 41 (Docket No. 32, Atts. 9 & 10). This is not to say that Supervisor White’s
management style was ideal; still, whatever shortcomings he may have had in this regard do not
morph into a hostile work environment once an aggrieved employee is terminated from her job.13
Accordingly, Plaintiff’s hostile work environment claim is dismissed.
Plaintiff’s Negligent Infliction of Emotional Distress Claim
In addition to her gender discrimination and hostile work environment claims, Plaintiff
brings a negligent infliction of emotional distress claim – a state tort claim. Of relevance to this
claim, although Plaintiff filed a complaint with the Idaho Human Rights Commission, she did
not file a separate notice of her tort claim in accordance with the Idaho Tort Claims Act. As a
result, Defendant now seeks to dismiss Plaintiff’s negligent infliction of emotional distress
claim. See Def.’s Mem. in Supp. of Mot. for Summ. J., pp. 18-19 (Docket No. 32, Att. 2).
The Idaho Tort Claims Act generally permits claims against governmental entities “for
money damages arising out of its negligent or otherwise wrongful acts or omissions and those of
its employees . . . .” I.C. § 6-903. Before proceeding with such an action, however, the Idaho
In reaching this decision, the Court makes no determination on the applicability of the
Faragher/Ellerth affirmative defense to these facts. See Def.’s Mem. in Supp. of Mot. for
Summ. J., pp. 14-18 (Docket No. 32, Att. 2).
MEMORANDUM DECISION AND ORDER - 25
Tort Claims Act requires that “[a]ll claims against a political subdivision arising under the
provisions of this act and all claims against an employee of a political subdivision . . . shall be
presented to and filed with the clerk or secretary of the political subdivision.” I.C. § 6-906.
The Idaho Human Rights Act prohibits certain acts of discrimination. See I.C. §§ 675909 & 5911. The Idaho Human Rights Act provides that “[a]ny person who believes he or she
has been subject to unlawful discrimination . . . may file a complaint” with the Idaho Human
Rights Commission.” I.C. § 67-5907. IHRA’s section 67-5908(2) states that a “complaint must
be filed with the commission as a condition precedent to litigation.” I.C. § 67-5908(2).
Plaintiff argues that her complaint with the Idaho Human Rights Commission under the
Idaho Human Rights Act satisfies any separate requirement that she also file a notice of her tort
claims under the Idaho Tort Claims Act. See Pl.’s Resp. to Def.’s Mot. for Summ. J., p. 16
(Docket No. 36) (“Once a Plaintiff files a complaint with the Idaho Human Rights Commission,
the complaint satisfies the notice requirements of the [Idaho Tort Claims Act], and any allegation
contained in the complaint filed with the Idaho Human Rights Commission does not require a
separate tort claim under the [Idaho Tort Claims Act].”). The undersigned disagrees.
Regardless of whatever “economy” of action, sensible or not, that might result from a
ruling in Plaintiff’s favor on this discrete issue, such a ruling necessarily would run against the
grain of the law of sovereign immunity. In the absence of a legislatively-enacted waiver of such
immunity, Plaintiff would have no claim of this nature to pursue at all. The waiver of such
immunity is to be considered, and interpreted, in a manner consistent with the legislature’s
decision as to which, when, and how such claims may be brought against the State. Such issues
were at play in Johnson v. North Idaho Coll., 2007 WL 917379 (D. Idaho 2007), in which U.S.
MEMORANDUM DECISION AND ORDER - 26
District Judge Edward J. Lodge addressed whether a complaint filed with the Idaho Human
Rights Commission satisfies the notice requirement of the Idaho Tort Claims Act for state tort
claims. Id. at *2. Answering “no” to this question, Judge Lodge relied upon the Idaho Supreme
Court’s repeated emphasis “that compliance with the notice requirement . . . is a mandatory
condition precedent to bringing an action under the [Idaho] Tort Claims Act,” reasoning:
By statute, the Idaho Human Rights Act is limited to matters that concern
“discrimination because of race, color, religion, sex, or national origin . . . [and]
age.” Accordingly, a provision of the Act states that the filing of a complaint with
the Idaho Human Rights Commission only “satisfies the notice requirements of the
[Idaho Tort Claims Act] as to the allegations of the administrative complaint arising
under [the Idaho Human Rights Act].” This language, then, expressly limits
Plaintiff’s compliance with the Idaho Tort Claims Act, by the filing of her complaint
with the Idaho Human Rights Commission, to the claims that allege discrimination
and sexual harassment. These claims – discrimination and sexual harassment – are
the only ones asserted by Plaintiff that arise under the Idaho Human Rights Act. The
filing of a complaint with the Idaho Human Rights Commission cannot serve as a
substitute for filing a notice as to Plaintiff’s state law tort claims because § 5907A
of the Idaho Human rights Act does not permit it.
Id. (emphasis added) (internal citations omitted). Though Johnson is not be a reported decision,
and the Ninth Circuit’s subsequent affirmance (see Johnson v. North Idaho Coll., 2009 WL
3303714 (9th Cir. 2009)) is unpublished, this Court sees no reason to depart from the rationale
contained in either decision.14 Therefore, Plaintiff’s negligent infliction of emotional distress is
As to Plaintiff’s arguments concerning the procedural difficulties that may confront a
litigant trying to satisfy the requirements of both the Idaho Tort Claims Act and the Idaho
Human Rights Act, along with filing actions in federal court, the undersigned again turns to
Judge Lodge. See Johnson, 2007 WL 917379 at * 2 (citing City of Philadelphia v. Lead Indus.
Ass’n, 994 F.2d 112, 123 (3d Cir. 1993) (explaining that “[i]n a diversity case . . . federal courts
may not engage in judicial activism. Federalism concerns require that we permit state courts to
decide whether and to what extent they will expand state common law. Our role is to apply the
current law of the jurisdiction, and leave it undisturbed . . . . Absent some authoritative signal
from the legislature or the state courts, [there is] no basis for even considering the pros and cons
of innovative theories. We must apply the law of the forum as we infer it presently to be, not as
it might come to be.”).
MEMORANDUM DECISION AND ORDER - 27
separately barred by the Idaho Tort Claims Act.15
For the foregoing reasons, IT IS HEREBY ORDERED THAT:
Plaintiff’s Motion to Amend Complaint (Docket No. 29) is DENIED; and
Defendant’s Motion for Summary Judgment (Docket No. 32) is GRANTED.
DATED: December 12, 2011
Honorable Ronald E. Bush
U. S. Magistrate Judge
In reaching this decision, the Court makes no determination on whether Plaintiff has
sufficiently pled the elements of a negligent infliction of emotional distress claim under Idaho
law – namely, whether she has adequately alleged a physical manifestation of an injury caused
by the alleged negligent infliction of emotional distress. See Def.’s Mem. in Supp. of Mot. for
Summ. J., pp. 19-20 (Docket No. 32, Att. 2).
MEMORANDUM DECISION AND ORDER - 28
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