Sommer v. Elmore County et al

Filing 44

MEMORANDUM DECISION AND ORDER Plaintiff's Motion for Summary Judgment (Docket No. 31 ) is DENIED; and Defendants' Cross-Motion for Summary Judgment (Docket No. 33 ) is GRANTED. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MISTY SOMMER,

Case No. 1:11-cv-00291-REB

Plaintiff,

MEMORANDUM DECISION AND
ORDER RE:

v.
ELMORE COUNTY, MARSA PLUMMER, and
JOHN/JANE DOES I through X, whose true
identities are presently unknown,

PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
(Docket No. 31)
DEFENDANTS’ CROSS-MOTION
FOR SUMMARY JUDGMENT
(Docket No. 33)

Defendants.

Currently pending before the Court are cross motions for summary judgment (Docket
Nos. 31 and 33). Having carefully considered the record, participated in oral argument, and
otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
I. BACKGROUND
It is undisputed that Plaintiff Misty Sommer was an at-will employee for Defendant
Elmore County before being fired on October 4, 2010. Notwithstanding her at-will status,
Sommer contends that once she requested such, Elmore County was required to provide her a
pre-termination hearing. Such a right, Sommer argues, is granted to “full-time regular and part
time employees” in Elmore County’s Personnel Policy. See Elmore County Personnel Policy
(“Policy”), p. 20 (Docket No. 1, Att. 5).1 Sommer further argues that, although she was

1

The Policy classifies employees as either (1) full-time regular employees, (2) part-time
regular employees, or (3) casual/seasonal employees. See Policy, p. 9 (Docket No. 1, Att. 5).
The “Significance of Employee Classification,” according to the Policy, is that “procedures for
hiring, promotion, and transfer of full-time employees shall be subject to the provisions of this
policy. Personnel actions concerning part-time or casual employees are not subject to guidelines
set forth herein unless the handbook provisions expressly provide therefore.” See id.
MEMORANDUM DECISION AND ORDER - 1

employed with Elmore County as a full-time, regular employee (albeit in a probationary period
in a “new” position, due to a change in job positions), she never received a pre-termination
hearing before being fired. As a result, Sommer brought claims for (1) wrongful termination in
violation of her due process rights, and (2) negligent infliction of emotional distress against
Defendants Elmore County and Marsa Plummer (the Elmore County Clerk) (collectively
“Defendants”).
Defendants moved to dismiss Sommer’s claims, arguing that because of her probationary
status, Sommer was not a “regular” employee and, therefore, not entitled to a pre-termination
hearing.2 This Court previously granted Defendants’ Motion to Dismiss Sommer’s negligent
infliction of emotional distress claim, but denied Defendants’ Motion to Dismiss Sommer’s
wrongful termination claim, finding that the Policy was ambiguous as to whether probationary
employees had the right to a pre-termination hearing. However, relevant here, the Court
specifically left unresolved any argument that, as an at-will employee, Sommer had no property
right in continued employment and, thus, no basis for a due process challenge to the termination
of that employment. The parties’ cross Motions for Summary Judgment are centered upon this
previously-undecided issue.
II. DISCUSSION
A.

Summary Judgment Standard
One principal purpose of 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

2

Defendants alternatively sought to dismiss Sommer’s negligent infliction of emotional
distress claim because she alleged no physical injury.
MEMORANDUM DECISION AND ORDER - 2

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 evidence, including all reasonable inferences which may be drawn therefrom, must
be viewed in a light most favorable to the non-moving party and the Court must not make
credibility findings. See id. at 255. Direct testimony of the non-movant must be believed,
however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other
hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence.
McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this
burden, the moving party need not introduce any affirmative evidence (such as affidavits or
deposition excerpts) but may simply point out the absence of evidence to support the nonmoving
party’s case. 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 his favor. See id. at 256-57. The non-moving party must go beyond the pleadings
and show “by [his] 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. Statements in a brief,
unsupported by the record, cannot create an issue of fact. Barnes v. Independent Auto. Dealers,
64 F.3d 1389, 1396 n. 3 (9th Cir. 1995).
MEMORANDUM DECISION AND ORDER - 3

However, as a general rule, the Court is “not required to comb through the record to find
some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co.,
840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the “party opposing summary judgment must
direct [the Court’s] attention to specific triable facts.” Southern California Gas Co. v. City of
Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). An exception to this rule exists when crossmotions for summary judgment are filed. In that case, the Court must independently search the
record for issues of fact. See Fair Housing Council of Riverside Co., Inc. v. Riverside Two, 249
F.3d 1132, 1136 (9th Cir. 2001).
B.

Sommer’s Wrongful Termination/Due Process Claim
The Fourteenth Amendment to the United States Constitution protects individuals from

the deprivation of liberty or property by the government without due process. A section 1983
claim based upon procedural due process contains three elements: (1) a liberty or property
interest protected by the United States Constitution; (2) a deprivation of that interest by the
government; and (3) a denial of adequate procedural protections. See Portman v. County of
Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993).
To state a claim under the Due Process Clause, Sommer must first establish that she
possessed a property interest deserving of constitutional protection. See Brewster v. Bd. of Educ.
of the Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998); see also Gilbert v. Homar,
520 U.S. 924, 928-29 (1997). If a property interest exists, the essential requirements of due
process are notice and an opportunity to respond. See Cleveland Bd. of Educ. v. Loundermill et
al., 470 U.S. 532, 546 (1985). The Due Process Clause does not create substantive property

MEMORANDUM DECISION AND ORDER - 4

rights; property rights are defined instead by reference to state law. See Portman, 995 F.2d at
904.
To determine whether Sommer’s due process rights were violated, the Court must
necessarily determine whether Sommer possessed a constitutionally-protected property interest
in continued employment. See Dyack v. Commonwealth of N. Mariana Islands, 317 F.3d 1030,
1033 (9th Cir. 2003) (citing Loudermill, 470 U.S. at 538). “To have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it. [S]he must have
more than a unilateral expectation of it. [S]he must, instead, have a legitimate claim of
entitlement to it.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972); see also
Sonoda v. Cabrera, 255 F.3d 1035, 1040 (9th Cir. 2001) (“An individual ‘has a constitutionally
protected property interest in continued employment . . . if he has a reasonable expectation or a
‘legitimate claim of entitlement’ to it, rather than a mere ‘unilateral expectation.’’”) (citation
omitted).
The long-standing rule in Idaho is that, unless an employee is hired pursuant to a contract
which specifies the duration of the employment or limits the reasons for which an employee may
be discharged, the employment is presumed to be at the will of either party and the employer
may terminate the relationship at any time without incurring liability. See Bollinger v. Fall River
Rural Elec. Coop., Inc., 272 P.3d 1263, 1269 (Idaho 2012). This presumption, however, may be
rebutted by express or implied contract. See id. Here, Sommer argues that the Policy’s
unequivocal reference to the availability of a pre-termination hearing to all full-time, regular
employees, coupled with the Policy’s failure to disclaim such a right to any particular type of
employee, establish as a matter of law a constitutionally-protected property interest, entitled to

MEMORANDUM DECISION AND ORDER - 5

due process protection. See Pl.’s Mem. in Supp. of MSJ, pp. 5-11 (Docket No. 31, Att. 1).
Defendants disagree, pointing out that the Policy expressly negates any intention to become part
of Sommer’s employment contract with Elmore County. See Defs.’ Mem. in Supp. of MSJ, pp.
4-14 (Docket No. 32).
It is true that the Policy contains a provision which could be read to support Sommer’s
contention that, even as an employee on probation, she could not be fired until receiving a pretermination hearing – to be sure, this Court previously denied Defendants’ Motion to Dismiss on
this very point. See supra. The Idaho Supreme Court has recognized that an employee manual,
like the Policy, can constitute an element of an employment contract. See Mitchell v. Zilog, Inc.,
874 P.2d 520, 523 (Idaho 1994). Whether such a manual does so may be a question of fact,
unless the manual “specifically negates any intention on the part of the employer to have it
become a part of the employment contract.” Id. at 523-24.
In this case, the Policy explicitly disclaims any intent to become part of the employment
contract, stating at its very beginning:
THIS PERSONNEL POLICY IS NOT A CONTRACT. NO
CONTRACT OF EMPLOYMENT WITH ELMORE COUNTY
WILL BE VALID UNLESS IT IS SIGNED IN ACCORDANCE
WITH PROPER PROCEDURES BY A SPECIFICALLY
AUTHORIZED REPRESENTATIVE OF THE GOVERNING
BOARD AND UNLESS IT IS SIGNED BY AND CONTAINS
THE NAME OF THE EMPLOYEE WHO WOULD BE
BENEFITTED BY THE CONTRACT.
Policy, p. 2 (Docket No. 1, Att. 5) (capitalization and bolding in original). With this disclaimer
in mind, Defendants contend that the facts of this case (and applicable law) are most similar to
those in Lawson v. Umatilla Co., 139 F.3d 690, 691 (9th Cir. 1998). See Defs.’ Mem. in Supp. of
MSJ, p. 8 (Docket No. 32).

MEMORANDUM DECISION AND ORDER - 6

In Lawson, the Ninth Circuit considered the plaintiff county employee, Kevin Lawson’s
section 1983 due process claim against the defendant Umatilla County and determined that a
comparable disclaimer stating, “[u]nder no circumstances shall these policies be construed to act
as any type of employment contract with any employee of the County of Umatilla,” precluded
the district court from determining a policy manual altered a county employee’s at-will status.
Id. Specifically, in reversing the lower court’s entry of judgment in Lawson’s favor, the court
held that the policy manual’s disclaimer was “an unambiguous statement that the general at-will
status of County employees . . . shall not be altered by the provisions” contained therein. See id.
at 693 (“The expression ‘under no circumstances’ speaks for itself and prevents us from
accepting [the plaintiff’s] argument that the distinction between probationary and permanent
employees somehow indicates an intent to depart from the at-will status.”). The court also found
that the policy manual’s contemporaneous provision stating that “[n]o permanent employee shall
be disciplined except for violation of established rules and regulations” (i.e., for cause) “must be
construed in conjunction with the ‘under no circumstances’ disclaimer.” Id. at 693-94. So
construed, the provision “merely provide[s] a framework for disciplining at-will employees
which is not binding on the County,” according to the court. Id. at 694. Thus, Lawson did not
have a property interest in continued employment.
Other judges in this District recently have issued decisions applying Lawson to analogous
situations involving county employees bringing due process violation claims against other Idaho
counties – Harms v. Power County, 2013 WL 791452 (D. Idaho 2013) and Brown v. Valley
County, 2013 WL 1453368 (D. Idaho 2013).3

3

Both Harms and Brown were decided after the parties submitted briefing on their
respective motions for summary judgment.
MEMORANDUM DECISION AND ORDER - 7

1.

Harms v. Power County

In Harms, the plaintiff county employee, Frederick Harms, sued the defendant Power
County, claiming breach of contract and violations of the Idaho Personnel Act, the First and
Fourteenth Amendments, and 42 U.S.C. § 1983, based on the termination of his employment.
Relying on its policy manual’s general disclaimer, Power County moved for summary judgment
on Harms’s constitutional claims, arguing that the disclaimer preserved his at-will status such
that he had no constitutionally-protected property interest in continued employment, despite a
provision in the policy manual requiring cause for termination. See Harms, 2013 WL 791452 at
*1-4. The first page of Power County’s policy manual contained a general disclaimer stating:
THIS PERSONNEL POLICY IS NOT A CONTRACT. This
handbook supersedes any representation previously made whether
verbal, written, express, or implied.
See Harms, 2013 WL 791452 at *1 (capitalization in original).
U.S. District Judge Edward J. Lodge discussed the policy manual’s provisions regarding
workplace conduct as well as its disciplinary penalties, finding that the provisions were not allinclusive and subject to change at any time. See id. at *11-13. Because of the unlimited
discretion retained by Power County, Judge Lodge found that the policy manual could not be
read to create a protected property interest. See id. at *12. Additionally, Judge Lodge held that,
under Lawson, the policy manual’s provisions regarding dismissal except for cause failed to
create a property interest when construed in conjunction with the disclaimer – particularly when
considering that Harms signed an acknowledgment form stating that he “understood and agreed”
that the handbook was not an employment contract or a guarantee of any particular length or

MEMORANDUM DECISION AND ORDER - 8

term of employment, that he was an “employee at-will,” and that the list of rules contained in the
handbook were “illustrative and not all inclusive.” See id.
As a result, in granting Power County’s motion for summary judgment, Judge Lodge held
that it was not just (1) the policy manual’s contractual disclaimer, but also (2) the policy
manual’s discretionary language, and (3) the receipt and acknowledgment form “under which
[Harms] unequivocally renounced a right to anything other than at-will employment,” that
together precluded Harms from claiming a property interest in continued employment. See id. at
*12-13.4
2.

Brown v. Valley County

In Brown, the plaintiff county employee, Steven Brown, filed a complaint against the
defendant Valley County, asserting claims under 42 U.S.C. § 1983 for deprivation of due process
arising out of Brown’s constitutional property interest in his employment with Valley County.
While Brown conceded he did not have a contractual right to continued employment, he argued
that he nonetheless held a legitimate claim of entitlement to continued employment based upon
the entirety of Valley County’s policy manual provisions5 which rebutted any presumption that
his employment status was at-will. See Brown, 2013 WL 1453368 at *5. In turn, Valley County
moved for summary judgment (Brown also moved for partial summary judgment on the same

4

Harms filed a notice of appeal on April 1, 2013. According to the Ninth Circuit’s
“Time Schedule Order,” briefing relative to the appeal was to be completed by August 2013. As
of the date of this Memorandum Decision and Order, the plaintiff’s appeal remains pending.
5

Brown pointed to that section of the policy manual limiting discharge “except for cause
related to performance of [your] job duties or other violations of the policy.” See Brown, 2013
WL 1453368 at *5.
MEMORANDUM DECISION AND ORDER - 9

issue), arguing that the disclaimer in the same policy manual preserved Brown’s at-will status
under Idaho law, leaving Brown without a constitutionally-protected property interest in
continued employment. See id. The first page of Valley County’s policy manual contained a
general disclaimer stating:
THIS PERSONNEL POLICY IS NOT A CONTRACT. NO
CONTRACT OF EMPLOYMENT WITH VALLEY COUNTY
WILL BE VALID UNLESS IT IS SIGNED IN ACCORDANCE
WITH PROPER PROCEDURES BY A SPECIFICALLY
AUTHORIZED REPRESENTATIVE OF THE GOVERNING
BOARD AND UNLESS IT IS SIGNED BY AND CONTAINS
THE NAME OF THE EMPLOYEE WHO WOULD BE
BENEFITTED BY THE CONTRACT.
CHANGES TO THE POLICIES AND BENEFIT OFFERINGS
OUTLINED IN THIS HANDBOOK ARE SUBJECT TO
CHANGE AT ANY TIME, WITHOUT NOTICE. CHANGES
MAY BE MADE AT THE SOLE DISCRETION OF THE
GOVERNING BOARD.
See id at *1-2 (capitalization and bolding in original).
Chief U.S. Magistrate Judge Candy Dale disagreed, distinguishing the facts surrounding
Brown’s due process claim from Lawson and Harms. For example, in Brown, Valley County’s
policy manual mentioned that an employee is at-will during the 90-day introductory period, but
silent as to whether an employee retains the at-will moniker after those 90 days – instead,
employees are told that Valley County’s policy requires “cause related to performance of their
job duties or other violations of this policy” (see supra)6 before an adverse employment action

6

Judge Dale further noted that the portion of the policy manual requiring cause begins
with the phrase: “Except as otherwise provided in this paragraph.” Brown, 2013 WL 1453368 at
*6. This meant that the paragraph “stands alone” without reference to any other portion of the
policy manual and, thus, “excludes any cross-reference to the disclaimer language or any other
provision of the policy manual.” See id.
MEMORANDUM DECISION AND ORDER - 10

may be taken against an employee. See id. at *6. Judge Dale also pointed out that, unlike
Lawson and Harms, there was never an emphatic at-will acknowledgment from Brown. See id.
at *7.7 (addressing Harms’s three-part combination of reasons for finding Harms was employed
at-will (see supra), stating: “Here, the stool is missing a leg. Other than during the 90-day
introductory period, the policy manual did not unequivocally state that Brown was an at-will
employee.”).
Judge Dale therefore concluded that Valley County’s policy manual disclaimer, without
more, could not preserve the at-will status of Brown’s employment as a matter of law. See id. at
*9 (“Neither the contract disclaimer nor the discretionary nature of the policy manual’s
disciplinary rules are sufficient to negate the effect of the stand-alone provision requiring cause
related to performance of job duties or other violations of the policy for termination.”). That is,
absent any express affirmation of an at-will employment relationship, a “reasonable inference”
existed that, “after the 90-day introductory period, employment was no longer ‘at-will’ given the
mandatory nature of the ‘for cause’ paragraph excluding reference to any other part of the Policy
Manual.” See id. at *7. Because this inference limited the reasons for which Brown could be
discharged, Judge Dale granted Brown’s motion for partial summary judgment (while denying
Valley County’s motion for summary judgment) and found that he was not an at-will employee,
but had a protected property interest in his continued employment. See id. at *10.

7

Brown did sign an acknowledgment and receipt form, however it simply reiterated that
the policy manual was “not a contract and cannot create a contract,” and that Brown was
obligated to perform his job duties in conformance with the provisions of the policy manual. See
Brown, 2013 WL 1453368 at *7
MEMORANDUM DECISION AND ORDER - 11

3.

Adopting the Reasoning of Harms and Brown, Sommer Does Not Have a
Constitutionally-Protected Property Interest in Continued Employment with
Elmore County

Judge Lodge’s and Judge Dale’s examination and application of Lawson in both Harms
and Brown reveals the following summary breakdown of the relevant considerations involved
here:
HARMS

BROWN

Disclaimer

T

T

Discretionary Language

T

T

At-Will Acknowledgment

T

HOLDING:

NO PROPERTY INTEREST

PROPERTY INTEREST

In this case, like Harms and Brown, the Policy’s first substantive page clearly disclaims
any intent to have its provisions become part of Sommer’s (and every other county employee’s)
employment contract with Elmore County. Compare Policy, p. 2 (Docket No. 1, Att. 5) (“THIS
PERSONNEL POLICY IS NOT A CONTRACT. NO CONTRACT OF EMPLOYMENT
WITH ELMORE COUNTY WILL BE VALID UNLESS . . . .”) (capitalization and bolding
in original),8 with Harms, 2013 WL 791452 at *1 (supra), and Brown, 2013 WL 1453368 at *1-2
(supra). Second, also like Harms and Brown, that same page of the Policy continues to inform
Elmore County employees that its terms are discretionary and can be changed at any time.
Compare Policy, p. 2 (Docket No. 1, Att. 5) (“The terms set forth in this booklet reflect public
policy at the time of its printing, but they are subject to change at any time . . . and at the

8

There is no evidence that the Policy’s provisions expressly made their way into an
employment contract between Sommer and Elmore County via the identified protocol outlined in
this same paragraph – namely (1) that it be signed in accordance with proper procedures, (2) by a
specifically authorized representative, and (3) that it be signed by and contains the name of the
employee who would be benefitted by the contract (in this case, Sommer herself). See supra.
MEMORANDUM DECISION AND ORDER - 12

discretion of the Elmore County Board of Commissioners.”), with Harms, 2013 WL 791452 at
*11-12, and Brown, 2013 WL 1453368 at *7. Finally, as in Harms (but not in Brown), Sommer
expressly acknowledged on September 15, 2010 (less than one month before her termination)
that she was, in fact, an at-will employee with Elmore County. Compare Ex. 1 to Defs.’ Ans.
(Docket No. 13) (acknowledging that she was “still on probationary status until April 13, 2011,
with [her] employment with Elmore County and, therefore [she] remain[ed] an at-will
employee.”), with Harms, 2013 WL 791452 at *12-13 (“By signing the [Acknowledgment]
Form, Plaintiff expressly agreed that he was an employee at-will . . . .”), and Brown, 2013 WL
1453368 at *7 (“Another important difference between this case and both Lawson and Harms is
the lack of an emphatic at-will acknowledgment.”) (emphasis added).9 Indeed, for
understandable reasons given the details of the factual record, throughout this proceeding,
Sommer’s counsel has acknowledged that Sommer was an at-will employee.10

9

Although, in Brown, the plaintiff signed an acknowledgment and receipt form it simply
stated that the policy manual was “not a contract and cannot create a contract,” and that the
plaintiff was obligated to perform his job duties in conformance with the provisions of the policy
manual. See supra; see also Brown, 2013 WL 1453368 at *7 (“There was no acknowledgment
like the one Harms signed, which unequivocally stated Harms was employed ‘at-will.’”); Harms,
2013 WL 791452 at *12-13 (“‘If a disclaimer printed in the employee handbook will be effective
to negate an implication that the employment is terminable only for causes stated in the
handbook, it follows that such implication may also be avoided by requiring execution of an
express covenant that the employment is at will.’”) (quoting Jones v. Micron Tech., Inc., 923
P.2d 486, 491 (Idaho 1996)).
10

Sommer’s written acknowledgment of her at-will status, signed shortly before her
termination, combined with her counsel’s affirmation of same, make it unnecessary to decide
whether a reasonable person could conclude that Sommer and Elmore County intended a
limitation on her discharge. Such an inquiry exists to rebut the presumption of at-will
employment. See Brown, 2013 WL 1453368 at *8 (citing Bollinger v. Fall River Rural Elec.
Co-op., Inc., 272 P.3d 1263, 1269 (Idaho 2012)). But here, there is not just a presumption – it is
understood that Sommer was an at-will employee of Elmore County. This will not disturb the
at-will relationship. See Harms, 2013 WL 791452 at *12-13 (“At the time the policy manual
was distributed, Plaintiff also executed an express agreement that his employment was at will.
Plaintiff could not simultaneously infer a property interest in continued employment based on
contrary provisions in the policy manual.”).
MEMORANDUM DECISION AND ORDER - 13

Under Harms and Brown (and, even Lawson), these three factual details – (1) the
Policy’s disclaimer language, (2) the discretionary nature of the Policy, and (3) Sommer’s
acknowledgment that she was an at-will employee – leave no room to rebut any presumption of
Sommer’s at-will employment with Elmore County. To the contrary, they combine to cement in
place the absence of any property interest in her continued employment with Elmore County.
See, e.g., Titus v. Horrell, 488 Fed. Appx. 233, 234 (9th Cir. 2012) (“Since Titus had no
entitlement to his continued employment, he had no protected property interest, and his due
process rights were not violated.”) (citing Lawson, 139 F.3d at 691–92). Her status was exactly
as described in the acknowledgement she signed, i.e., that she remained an at-will employee
during her probationary status.11 Therefore, on this record, Sommer’s claim for wrongful
termination in violation of her due process rights must be dismissed.
III. ORDER
Based upon the foregoing, IT IS HEREBY ORDERED THAT:
1.

Plaintiff’s Motion for Summary Judgment (Docket No. 31) is DENIED; and

2.

Defendants’ Cross-Motion for Summary Judgment (Docket No. 33) is
GRANTED.
DATED: September 18, 2013

Honorable Ronald E. Bush
U. S. Magistrate Judge

11

This Memorandum Decision and Order does not address whether a probationary
employee, like Sommer, who was in that status by virtue of changing positions after having
previously been a regular employee, is entitled to a termination hearing if such a termination
occurs after the probationary period had been completed. That is not the issue before the Court
on these cross-motions or otherwise presented by the facts in this record.
MEMORANDUM DECISION AND ORDER - 14