Brown v. Valley County et al

Filing 43

ORDER denying 39 Motion to Certify; granting 20 Plaintiff's Motion for Partial Summary Judgment; denying 21 Defendant's Motion for Summary Judgment. Signed by Judge Candy W. Dale. (klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JAYNE BROWN, as Personal
Representative of the Estate of
Steven P. Brown,

Case No. 1:12-cv-00057-CWD
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
VALLEY COUNTY, a political
subdivision of the State of Idaho;
and GORDON CRUICKSHANK,
JERRY WINKLE and RAY MOORE,
Valley County Commissioners, in their
individual and official capacities,
and JOHN DOES I – XX,
Defendants.

INTRODUCTION
Steven Brown1 filed a complaint against Valley County and its three
Commissioners on February 8, 2012. The complaint asserts a claim under 42 U.S.C. §
1983, for deprivation of due process arising out of Brown’s constitutional property

1

Steven Brown passed away on August 15, 2012, and his wife, Jayne Brown, was appointed personal representative
of his estate. (Dkt. 27.) Jayne Brown was substituted as Plaintiff by the parties’ stipulation. (Dkt. 31.)

MEMORANDUM DECISION AND ORDER - 1

interest in his employment Valley County. Brown’s second cause of action arises under
the Idaho State Constitution, also alleging a deprivation of his property interest in his
employment, which he claims could not be terminated without due process. Brown
further contends that Defendants are liable for spoliation of evidence, because they either
negligently or intentionally failed to record or preserve the recording of a pre-termination
hearing held on February 2, 2011.
Brown moves for partial summary judgment, seeking an order finding that he had
a constitutionally protected property interest in his employment relationship with
Defendant Valley County. If the Court finds for Brown, he may move forward with his
claims. Opposing him, Defendants, who collectively will be referred to as Valley County,
seek summary judgment on the grounds that Brown did not have a protected property
interest in his continued employment because he was an “at-will” employee. If the Court
finds for Valley County, Brown’s complaint will be dismissed.
The Court conducted a hearing on February 4, 2013, at which the parties appeared
and presented oral argument. The day after the hearing, Defendants filed a Motion for
Certification to the Idaho Supreme Court, contending that this case presents an issue
appropriate for the Idaho Supreme Court to decide. That motion now has been fully
briefed, and will be decided without a hearing. Dist. Idaho L. Rule 7.1(d)(1)(A).
After carefully considering the parties’ briefs, the applicable case law, and the
record, the Court enters the following order granting Brown’s motion for partial summary
judgment, and denying Valley County’s motion for summary judgment and its motion for
certification.
MEMORANDUM DECISION AND ORDER - 2

FACTS
The parties stipulated to the following undisputed, material facts. Brown was a
Valley County employee from 1998 until February 3, 2011. At the time of his separation,
Brown was the Building Department Head for Valley County. During his employment,
Valley County promulgated a Policy Manual, effective upon distribution for fiscal year
2004. (Policy Manual, Stipulation Ex. A, Dkt. 22.) Brown relies exclusively upon the
Valley County Policy Manual as the basis for his property interest claim. Brown signed
an “Acknowledgment of Receipt of New Valley County Personnel Policy Manual” on
December 16, 2003. (Acknowledgment, Stipulation Ex. B, Dkt. 22.) This
acknowledgment was of the 2004 Policy Manual, which is the only policy manual
relevant in this case. On February 3, 2011, Plaintiff’s employment was terminated, via a
written termination letter.
According to the parties, the following provisions of the Policy Manual are
material. First, in bold print on the first page, the Policy Manual contains a disclaimer
regarding the creation of a contract of employment:
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 BENEFITED 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.

MEMORANDUM DECISION AND ORDER - 3

New employees were subject to a ninety day introductory period, during which
“either the employee or Valley County may end the employment relationship at-will,
with or without cause or advance notice.” Otherwise, the Policy Manual classified
employees, and defined an employee’s employment status as follows:
Except as otherwise provided in this paragraph, employees of Valley
County will not be suspended without pay, demoted with an accompanying
change in pay, or discharged from their positions except for cause related to
performance of their job duties or other violations of this policy. Cause
shall be determined by the employee's supervisor/elected official and shall
be communicated in writing to the employee when employee status is
changed.
Only suspension without pay, demotion with change of pay, or discharge
for cause shall be subject to the appeal procedure set forth in this personnel
policy. The appeal procedure is to be construed in a directory [sic] manner.
It is the duty of the appellant to show by clear and convincing evidence that
the factual basis for the personnel action is incorrect or that the reasons for
the personnel action are contrary to the public interest or violate existing
law. Should the appellant establish such basis, the employee’s back wages
and benefits shall be restored as if the specified action had not been taken.
The Policy Manual established “the right to a hearing in the event of a discharge,
demotion with attendant change in pay, or suspension,” and outlined those
procedures in Section V.

ANALYSIS
1.

Motion to Certify
Idaho Appellate Rule 12.3 provides that a United States District Court may certify

a question of law to the Idaho Supreme Court if two conditions are met: (1) the question
certified is a controlling question of law in the pending action as to which there is no

MEMORANDUM DECISION AND ORDER - 4

controlling precedent in the decisions of the Idaho Supreme Court, and (2) the immediate
determination of the Idaho law with regard to the certified question would materially
advance the orderly resolution of the litigation in the United States Court. Idaho App. R.
12.3. As a general matter, the benefits of certification have been held to include: assuring
that state law will be applied uniformly and in accordance with the interpretations given
by each state’s high court; state courts will have the benefit of having the final say on a
matter of state law; and, the federal courts can avoid the difficult task of attempting to
divine how a state court would rule on a matter of state law. See Lehman Bros. v. Schein,
416 U.S. 386, 391 (1974) (noting that certification “does, of course, in the long run save
time, energy, and resources and helps build a cooperative juridical federalism”).
Defendants seek certification of one question: “whether a public employee can
have a property interest in employment where a policy manual contains both contract
disclaimer language and language to the effect that an employee cannot be discharged
except for cause.” Defendants claim this is an issue of first impression, and a controlling
issue in the case. Defendants are correct that the issue is central to this case. But
Defendants are mistaken that it is a “question of law” rising to a level requiring the Idaho
Supreme Court to decide it.
This Court is asked to decide whether Brown held a property interest in his
continued employment based upon the language in the Valley County Policy Manual.
The Court looks to state law to determine the extent of his property interest. There is no
dearth of Idaho case law on this issue. The Court is left, then, to apply established Idaho
law to the facts of this case. It is not deciding a matter of public policy important to the
MEMORANDUM DECISION AND ORDER - 5

state, or a controlling question of law that is unresolved in Idaho. See, e.g., Miller v. Four
Winds Intern. Corp.,827 F.Supp.2d 1175 (D. Idaho 2011). To the contrary--the Court is
interpreting existing Idaho case law on the matter and applying it to the facts, a task the
Court does routinely. The Court will deny the motion to certify.
2.

Summary Judgment Standards
A 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
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. 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 its favor. Anderson, 477 U.S. at 256–57. The non-moving party
MEMORANDUM DECISION AND ORDER - 6

must go beyond the pleadings and show “by [its] 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.
The party bearing the burden of proof at trial “must establish beyond controversy
every essential element of its ... claim.” S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d
885, 889 (9th Cir. 2003) (adopting decision of district court “as our own”). A party who
does not have the burden “may rely on a showing that a party who does have the trial
burden cannot produce admissible evidence to carry its burden as to the fact.” Fed. R.
Civ. P. 56(c)(1)(B) (advisory committee’s note.)
As a general rule, the “party opposing summary judgment must direct [the
Court’s] attention to specific triable facts.” S. Cal. Gas Co., 336 F.3d at 889. An
exception to this rule exists when cross-motions for summary judgment are filed. In that
case, the Court must independently review the record for issues of fact. Fair Housing
Council of Riverside Co., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
Cross-motions for summary judgment—where both parties essentially assert that there
are no issues of material fact—does not vitiate the court’s responsibility to determine
whether disputed issues of material fact are present. Id.
In this case, the parties argue vigorously as to their understanding of the Policy
Manual. These disagreements are matters of argument and not contested issues of
material fact. The parties have stipulated to the material facts, and have included the
Policy Manual in their filings.

MEMORANDUM DECISION AND ORDER - 7

3.

Due Process Claim2
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.
Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). To state a claim
under the Due Process Clause, Brown must first establish he possessed a property interest
deserving of constitutional protection. 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. Loudermill et al., 470
U.S. 532, 546 (1985). The Due Process Clause does not create substantive property
rights; property rights are defined instead by reference to state law. Portman, 995 F.2d at
904.
To determine whether Brown’s due process rights were violated, the Court first
must determine whether Brown possessed a constitutionally protected property interest in
continued employment. 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, a
person must have “a legitimate claim of entitlement to it,” and such claim may be based
2

The parties did not separately brief the due process claim asserted under the Idaho Constitution. It appears the
parties agree that the at-will status of Brown’s employment is determinative of both constitutional claims at this
juncture.

MEMORANDUM DECISION AND ORDER - 8

upon a rule or policy that secures an interest in continued employment or that creates a
legitimate claim to it. See Bd. of Regents v. Roth, 408 U.S. 564, 577, 578 (1972).3 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).
Valley County argues that the disclaimer in the Policy Manual preserved Brown’s
at-will status under Idaho law, leaving Brown without a constitutionally protected
property interest in continued employment. Valley County begins with the premise that
the employment relationship itself is a contractual relationship. Because the bold faced
disclaimer on the first page of the Policy Manual negates an intent that it become an
employment contract, Valley County argues Brown’s at-will status was preserved.
According to Valley County, the policies set forth in the Policy Manual were simply proemployee guidelines that were not mandatory, did not limit the reasons for discharge, and
simply created a framework for the employment relationship.
Brown concedes he does not have a contractual right to continued employment,
and his complaint does not assert a breach of contract claim. But Brown argues that,
despite the lack of a contractual right to continued employment, he held a legitimate

3

In Roth, the Supreme Court recognized that a public employee who may be discharged only for cause has a
constitutionally protected property interest in his tenure and cannot be deprived of his employment without due
process. Roth, 408 U.S. at 578; see also Gilbert v. Homar, 520 U.S. 924, 928—29 (1997). However, the Supreme
Court held in Roth that the university professor did not have a property interest in re-employment for the next year,
in part because “no state statute or University rule or policy” secured his interest in re-employment. 408 U.S. at 578.
Therefore, it stands to reason that the converse is true---a policy may establish an interest in re-employment or
continued employment, as the case may be.

MEMORANDUM DECISION AND ORDER - 9

claim of entitlement to continued employment based upon the Policy Manual provisions
taken as a whole. He points to Section IV(A)(1) of the Policy Manual, which limits
discharge “except for cause related to performance of [your] job duties or other violations
of this policy.” According to Brown, the Policy Manual’s provisions, considered as a
whole, rebut the presumption that his employment status was “at-will,” and gave him a
legitimate claim of entitlement to continued employment.
Valley County contends the facts of this case and applicable law are most similar
to those in Lawson v. Umatilla County, 139 F.3d 690 (9th Cir. 1998). Oregon state law
codifies the at-will status of all county employees, stating such employees “hold office
during the pleasure of the appointing officer.” 139 F.3d at 692. Valley County asserts that
Oregon’s state statute is analogous to Idaho’s legal presumption endorsed in Idaho case
law that employment is at-will “unless the employee is hired pursuant to a contract that
states a fixed term or limits the reasons for discharge.” Bollinger v. Fall River Rural
Electric Coop., Inc., 272 P.3d 1263, 1267 (Idaho 2012). And in Lawson, the county’s
employment manual contained a disclaimer similar to the disclaimer in this case, which
stated: “under no circumstances shall these policies be construed to act as any type of
employment contract with any employee” of the county.
Lawson asserted a Section 1983 due process claim, while Umatilla County relied
upon the disclaimer and contended Lawson was an at-will employee with no protected
property right. The court held that the disclaimer was an “unambiguous statement that the
general at-will status of county employees established by [statute] shall not be altered by

MEMORANDUM DECISION AND ORDER - 10

the provisions” of the policy manual. Id. at 693.4 The court found that the handbook
provision stating “[n]o permanent employee shall be disciplined except for violation of
established rules and regulations,” taken together with the disclaimer and Oregon state
law, did not give the employee a property interest in continued employment. In so
holding, the court noted that a handbook disclaimer can retain the employee’s at-will
status even when employment policies provide specific reasons for termination and for an
appeal process. Id.
Recently, this Court had an opportunity to apply Lawson to claims brought by a
Power County Sheriff’s deputy upon his termination from employment. Power County’s
policy manual is strikingly similar to Valley County’s Policy Manual. See Harms v.
Power County, Case No. 4:11-cv-00111-EJL-CWD, Mem. Order (Mar. 4, 2013) (Dkt.
35).5 In fact, the contract disclaimer language in Power County’s manual is similar to the
disclaimer in Valley County’s Policy Manual. Harms, Mem. Order at 13. Power County
moved for summary judgment on Harms’s constitutional claims brought under Section
1983,6 arguing the language in its policy manual preserved Harms’s at-will status and he
had no constitutionally protected property interest in continued employment, despite a
provision requiring cause for termination of employment.

4

Brown cites to Judge Pregerson’s dissent in Lawson, wherein he disagreed with the majority and would have found
that Lawson could only be fired for cause based upon the language of the policy manual. Judge Pregerson viewed
the disclaimer as precluding only breach of contract claims, not due process claims. Id. at 695. The Court finds it
unnecessary to resolve which side—the majority or the dissent---had the better reasoned view in Lawson, because it
finds the facts in Lawson distinguishable, as discussed later in this opinion.
5
Harms was decided after the Court conducted oral argument in this matter, but the facts and law discussed are
directly applicable to this case, and the Court would be remiss if discussion of the decision was not included.
6
Unlike Brown, Harms brought additional claims against Power County for breach of employment contract, and
violation of Idaho state law, specifically the Idaho Personnel Act.

MEMORANDUM DECISION AND ORDER - 11

The Court in Harms discussed the 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. Because of the unlimited discretion retained
by Power County, the Court found that the manual could not be read to create a protected
property interest. Harms, Mem. Order at 24. Second, the Court held that, under Lawson,
the manual’s provisions regarding dismissal except for cause failed to create a property
interest when construed in conjunction with the disclaimer. Harms, Mem. Order at 24-26. But, importantly, Harms signed an acknowledgment form that stated he “understood
and agreed” that the handbook was not an employment contract or a guarantee of any
particular length or 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.” As a
result, the Court held that it was not just the contractual disclaimer, but also the
discretionary language of the manual, and the receipt and acknowledgment form “under
which Plaintiff unequivocally renounced a right to anything other than at-will
employment,” that together precluded Harms from claiming a property interest in
continued employment. Harms, Mem. Order at 26 and n.9 (Dkt. 35.)7
The Court concludes that the facts in Lawson and Harms are distinguishable from
the facts before the Court in this matter, and that the Policy Manual disclaimer did not
preserve the at-will status of Brown’s employment as a matter of law. Here, the Policy
Manual mentions an employee is at-will during the introductory period. After the 90 day
introductory period, there is no mention of an employee retaining the at-will moniker.
7

The plaintiff filed a notice of appeal in Harms on April 1, 2013.

MEMORANDUM DECISION AND ORDER - 12

Instead, employees are told that Valley County’s policy requires “cause related to
performance of their job duties or other violations of this policy” before an adverse
employment action may be taken against an employee. The paragraph requiring cause
begins with the phrase: “Except as otherwise provided in this paragraph.” The paragraph
does not say “except as otherwise provided in this Policy Manual,” but rather is confined
to that paragraph. Thus, the “for cause” paragraph stands alone, without reference to any
other portion of the Policy Manual, and therefore excludes any cross-reference to the
disclaimer language or any other provision of the Policy Manual. The reference to the
employee’s duty to prove that the factual basis for the personnel action is incorrect does
not change the requirement that adverse employment actions require cause related to job
performance or violation of policy.
Another important difference between this case and both Lawson and Harms is the
lack of an emphatic at-will acknowledgement. Although Brown signed an
acknowledgement and receipt form, 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. There was no
acknowledgment like the one Harms signed, which unequivocally stated Harms was
employed “at-will.” Nowhere in the Policy Manual, other than in the paragraph
discussing the introductory period, does it say employees could be discharged for any
reason or at any time, without cause. And while Oregon codifies the at-will status of its
county employees in a state statute, Idaho does not. Rather, Idaho case law has developed

MEMORANDUM DECISION AND ORDER - 13

to hold that an employee is presumed to be at-will, but that presumption may be rebutted
by express or implied contract. Bollinger, 272 P.3d at 1269.
Lastly, although the Valley County Policy Manual includes expectations of
performance and rules regarding workplace conduct that are not all inclusive and that
may be changed at any time, such facts, together with the disclaimer, were not the only
deciding factors in Harms for finding Harms’s employment was at-will. Rather, the
Court was clear that it was the three-part combination of the discretionary disciplinary
policies, the contract disclaimer, and the at-will acknowledgment which precluded a
finding that Harms had a protected property interest in continued employment with
Power County, despite the one clause stating Harms could be discharged only for cause.
Here, the stool is missing a leg. Other than during the ninety day introductory period, the
Policy Manual did not unequivocally state that Brown was an at-will employee.
Although Valley County’s policies are subject to change at any time and Valley
County has discretion to change them, Brown could only be discharged for “violation of
this policy,” meaning the policies expressed in the Policy Manual. Further, Brown was
expected to perform his job duties “in conformance with the provisions” of the Policy
Manual. This leads to the reasonable inference, as Brown argued, that after the ninety 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.
Further, there was an express requirement that, at least for Brown, adherence to the
policies expressed in the Policy Manual was mandatory. The policies cannot, on the one

MEMORANDUM DECISION AND ORDER - 14

hand, be advisory and discretionary for Valley County, but on the other hand mandatory
for Brown.
Valley County next argues that the line of private employer cases cited in and
relied upon by the Idaho Supreme Court in Bollinger v. Fall River Rural Elec. Coop.,
Inc., 272 P.3d 1263, 1269 (Idaho 2012) support its argument that Brown retained his atwill status. The long-standing rule is that employment in Idaho is presumed to be at-will
unless the employee is hired pursuant to a contract that states a fixed term or limits the
reasons for discharge. Bollinger, 272 P.3d at 1269.8 Valley County argues its disclaimer,
which disavowed the creation of a contract of employment, results in Brown’s inability to
rely upon the Policy Manual to create a contractual right rebutting the at-will
presumption. Put another way, without a contract, or a contractual right that rebuts the atwill presumption, Valley County argues the Policy Manual is simply general policy that
neither binds Valley County nor constitutes part of the employment agreement.
But Valley County’s argument suffers from a fatal flaw. In essence, Valley County
argues Idaho law requires a contractual right upon which the employee must rely to rebut
the at-will presumption. Yet Bollinger and its predecessors recognized that, in the
absence of an express contract, a limitation to the at-will employment presumption may
be implied where the circumstances surrounding the employment relationship could
cause a reasonable person to conclude that the parties intended a limitation on discharge.

8

The following cases set forth the same general principle: Jenkins v. Boise Cascade Corp., 108 P.3d 380, 387—88
(Idaho 2005); Mitchell v. Zilog, Inc., 874 P.2d 520, 524—25 (Idaho 1994); Sorensen v. Comm Tek, Inc., 799 P.2d
70, 73—74 (Idaho 1990); Metcalf v. Intermountain Gas Co., 778 P.2d 744, 747 (Idaho 1989); Watson v. Idaho Falls
Consol. Hosp., Inc., 720 P.2d 632, 635—36 (Idaho 1986); Jones v. Micron Tech., Inc., 923 P.2d 486, 489—90
(Idaho Ct. App. 1996).

MEMORANDUM DECISION AND ORDER - 15

Bollinger, 272 P.3d at 1269. Statements made and policies promulgated by the employer,
whether in an employment manual or otherwise, may give rise to such an implied-in-fact
agreement. Id. In other words, an express contract or contract right does not preclude a
finding that the at-will presumption has been overcome. See, e.g., Ray v. Nampa School
District, 814 P.2d 17, 20 (Idaho 1991) (finding verbal statements together with an
employee handbook created a factual issue of whether an implied employment contract
existed); Parker v. Boise Telco Federal Credit Union, 923 P.2d 493, 496—97 (Idaho Ct.
App. 1996) (finding that the lack of a written agreement did not mean there was no
contract of employment; an employment contract exists by virtue of the employment
relationship itself, of which the manual may be a part).
The absence of a contract, although relevant, is not dispositive of Brown’s
procedural due process claim. Perry v. Sindermann, 408 U.S. 593, 599 (1972); see also
Harms, Mem. Order at 17 (stating that the absence of a contractual right to continued
employment does not necessarily lead to a finding that the employee lacked a property
interest in continued employment). The United States Supreme Court in Perry explained
that the concept of “‘property’ denotes a broad range of interests that are secured by
existing rules or understandings. A person’s interest in a benefit is a ‘property’ interest
for due process purposes if there are such rules or mutually explicit understandings that
support his claim of entitlement to the benefit and that he may invoke at a hearing.”
Perry, 408 U.S. at 601 (citing Roth, 408 U.S. at 577).
Stated another way, the lack of an express contract, which Brown concedes is
disclaimed by the Policy Manual, does not determine the outcome of Brown’s due
MEMORANDUM DECISION AND ORDER - 16

process claim; but the Policy Manual is relevant for determining whether Brown may
claim a property right in continued employment. See Sommer v. Elmore County, No.
1:11-cv-00291-REB, 2012 WL 4523449 (D. Idaho Sept. 30, 2012)9 (expressly
recognizing that Elmore County’s policy manual was not a contract, but relying upon its
language to determine whether the plaintiff’s due process claim was subject to dismissal);
Cameron v. Owyhee County, No. CV09-423-REB, 2011 WL 2945820 (D. Idaho July 20,
2011) (finding that the express at-will provision stated clearly in the personnel handbook,
not the lack of a contract, was determinative of the due process claim); Thompson v. City
of Idaho Falls, 887 P.2d 1094 (Idaho Ct. App. 1994) (relying upon the language of the
policy manual, not whether a contract existed, to determine the plaintiff’s property
interest claim).
Valley County’s argument that its disclaimer disposes of Brown’s due process
claim also distorts the rule applicable under Bollinger and its predecessors. See Metcalf,
778 P.2d at 746. Valley County’s argument, by logical extension, would result in the
following application of Idaho’s at-will employment rule: “unless an employee is hired
pursuant to a contract, then employment is at-will.” But the rule requires reference to the
employee handbook or other policy manual to ascertain if it either states employment is
for a specified term, or contains limitations on an employer’s ability to discharge an
employee.

9

The Court decided the defendants’ motion to dismiss, not a motion for summary judgment, in the opinion citied
herein. A motion for summary judgment is now pending, but has not been decided. The Court does not intend for
any part of this opinion to comment on the facts before the Court on the motion for summary judgment in the
Sommer matter.

MEMORANDUM DECISION AND ORDER - 17

The Court finds that, when viewed as a whole, the Valley County Policy Manual
places limitations on the reasons for discharge sufficient to create a property interest in
continued employment. 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. See Harkness, 715 P.2d at 1287 (citing Maloney v. Sheehan, 453
F.Supp. 1131, 1141 (D. Conn. 1978) (“A law establishes a property interest in
employment if it restricts the grounds on which an employee may be discharged. For
example, if discharge can only be for ‘just cause,’ an employee has a right to continued
employment until there is just cause to dismiss him.”).10
Valley County’s contention that its disclaimer is sufficient to preserve the at-will
employment relationship is unavailing. In the employment manual cases where the Idaho
appellate courts found the at-will employment relationship preserved, the manuals did not
just disclaim the existence of a contract; they also stated clearly either in the disclaimer or
somewhere else, such as in the text of the manual or in the acknowledgment, that
employment was at-will. Bollinger, 272 P.3d at 1267 (manual in effect at time of
discharge contained a provision stating that in the absence of a separate written contract

10

Valley County relies upon Zilog for its claim that, if the Court finds the disclaimer insufficient to negate the forcause language, both motions should be denied because there is a question of fact for the jury to decide. However,
the court in Zilog decided a breach of contract claim. In so doing, the court noted that, if an employee handbook
negated an intent to create a contract, a court may conclude from a review of the handbook that whether the
handbook was intended by the parties to impliedly express a term of the employment agreement is a question of fact.
Zilog, 874 P.2d at 524. By deciding that the disclaimer negated an intent to form an employment contract, there was
no factual issue. Id. At 525. Here, in contrast, the Court is not deciding whether there was or was not a contract,
because this case does not involve a breach of contract claim. The Court has previously explained that the existence
of a contract, while it may be relevant, is not solely determinative of a due process claim asserting a property interest
in continued employment.

MEMORANDUM DECISION AND ORDER - 18

fixing a term of employment, employees are at-will and may be terminated by the
company at any time); Jenkins v. Boise Cascade Corp., 108 P.3d 380, 387--88 (Idaho
2005) (manual stated that an employee could be discharged with or without cause and
that the handbook was not part of the employment contract); Jones v. Micron
Technology, Inc., 923 P.2d 486 (Idaho 1996) (employee signed a written agreement
acknowledging his employment was not for any definite period and that his employment
could be terminated without cause at any time, thereby negating anything in the
employment manual to the contrary); Mitchell v. Zilog, Inc., 874 P.2d 520, 524 (Idaho
1994) (manual stated that it was not to be construed as a contract, and elsewhere that
employment was at-will); Sorensen v. Comm Tek, Inc., 799 P.2d 70, 73—74 (Idaho 1990)
(manual had both a disclaimer that indicated employment was at-will, and elsewhere that
the policies did not confer any right or privilege to remain an employee). Here, in
contrast, the lack of any express “at-will” language, together with the stand-alone
paragraph requiring cause related to job performance or other violation of policy, rebuts
the at-will presumption as a matter of law.11
CONCLUSION
For the above reasons, the Court finds as a matter of law that the Valley County
Policy Manual, viewed as a whole, is not susceptible to two otherwise reasonable
interpretations. While the Policy Manual does state it is not a contract, elsewhere in the

11

It would have been a simple task to revise the manual and include language notifying employees they could be
discharged for any reason, that their employment was “at-will,” or that they could be discharged without cause---or
any other similar language used by the employers in the cases cited above. See e.g., Parker, 923 P.2d at 495, 496-97(court examined revised policy manual, and concluded the second manual, which stated “all employment was atwill,” preserved the employer’s right to terminate Parker at-will).

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Policy Manual, and in a self-contained paragraph, it states that employees past their
introductory period could be discharged only for cause related to performance of job
duties or other violations of the policies set forth in the Policy Manual. Although Valley
County retained discretion to change the policies, Brown was expressly required to
follow the policies stated in the Policy Manual. And Brown did not sign an
acknowledgment stating he understood his employment was “at-will,” nor did the Policy
Manual contain any other provision explaining Brown could be terminated from
employment for any reason, or for no reason, or at any time or manner. Because the
Policy Manual limited the reasons for which Brown could be discharged, Brown was not
an at-will employee and had a protected property interest in his continued employment.

MEMORANDUM DECISION AND ORDER - 20

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Plaintiff’s Motion for Partial Summary Judgment (Dkt. 20) is GRANTED.
2) Defendants’ Motion for Summary Judgment (Dkt. 21) is DENIED.
3) Defendants’ Motion for Certification (Dkt. 39) is DENIED.
4) The Court will conduct a telephonic scheduling conference with the parties
to establish new case management deadlines in light of the Court’s Order.
A separate Notice of Hearing will be forthcoming.

April 09, 2013

MEMORANDUM DECISION AND ORDER - 21