Ledford et al v. Idaho Department of Juvenile Corrections et al
Filing
142
MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED, that the motion for summary judgment (docket no. 126) is GRANTED IN PART AND DENIED IN PART. It is granted to the extent it seeks dismissal of the claims of plaintiff Shane Penrod. It isdenied in all other respects. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
RHONDA LEDFORD, et al.,
Case No. 1:12-cv-00326-BLW
Plaintiffs,
MEMORANDUM DECISION AND
ORDER
v.
IDAHO DEPARTMENT OF JUVENILE
CORRECTIONS, et al.,
Defendants.
INTRODUCTION
The Court has before it the defendants’ motions for summary judgment. The
Court heard oral argument on the motions and took them under advisement. For the
reasons expressed below, the Court will deny the motion in large part, granting only that
portion of the motion seeking to dismiss the claims of plaintiff Shane Penrod.
LITIGATION BACKGROUND
This is a whistleblower case. The original ten plaintiffs – employees of the Idaho
Department of Juvenile Corrections – claimed they suffered retaliation when they
protested unsafe conditions at the Nampa facility. The retaliation, they claim, was
designed to suppress their protected speech and prevent the public from finding out about
deplorable conditions at the facility that placed juvenile inmates in danger.
The Ninth Circuit dismissed plaintiffs’ First Amendment claims in its 2016
decision, holding that plaintiffs made “no showing that Defendants violated the
constitutional rights of any of the Plaintiffs.” Ledford v. Idaho Dept. of Juvenile
Memorandum Decision & Order – page 1
Corrections, 2016 WL 4191903 (9th Cir. 2016) (unpublished disposition) at *2. The
Circuit ruled that the First Amendment claims of plaintiffs Penrod, Reyna, Fordham,
Littlefield, and McCormick should be dismissed because “none of these five plaintiffs
spoke on a matter of public concern as a private citizen,” but instead spoke as employees
making internal complaints about workplace conditions, speech that was not subject to
First Amendment protection. Id. at *1. The Circuit also ruled that the First Amendment
claims of plaintiffs Ledford, Gregston, DeKnijf, McKinney, and Farnworth should be
dismissed because “[n]one of these plaintiffs experienced retaliation by defendants as a
result of their speech.” Id. In a later decision, this Court dismissed plaintiffs’ identical
claims under the Idaho Constitution.
That left only the claims under the Idaho Whistleblower Act. But the plaintiffs
filed a motion to supplement their complaint with new claims of retaliation arising since
the original complaint was filed. Specifically, the proposed supplemental complaint
alleges that in retaliation for filing this lawsuit, defendants fired three plaintiffs and took
various adverse actions against others, including demotions, refusals to transfer, and poor
evaluations. Plaintiffs claim that this new round of retaliation violated their rights under
(1) the First Amendment freedom of speech provisions; (2) the Idaho Constitution’s
freedom of speech provisions; and (3) the Idaho Protection of Public Employees Act
(Whistleblower Act).
The Court granted the motion pursuant to Rule 15(d), which allows a court to
“permit a party to serve a supplemental pleading setting out any transaction, occurrence,
or event that happened after the date of the pleading to be supplemented.” In that
Memorandum Decision & Order – page 2
decision, the Court noted that the new retaliation claim under the Whistleblower Act
“carries forward an existing claim – retaliation – against existing defendants by alleging
new acts of retaliation, including terminations, demotions, and other adverse employment
actions for pursuing this lawsuit. As the leading treatise on federal practice points out, it
would be ‘wasteful and inefficient’ to require that a separate lawsuit be filed on this
claim.”
Addressing the supplemental complaint’s allegation that this new round of
retaliation violated the First Amendment, the Court held that the Ninth Circuit’s decision
did not preclude these claims:
The supplemental complaint could be seen as an end-run around these
dismissals [by the Circuit] – an improper attempt to resurrect dead claims.
In fact, however, the new First Amendment claims cure all the
deficiencies identified by the Circuit in the old First Amendment claims:
For the first time, all plaintiffs are now alleging actual retaliation, and the
speech that prompted the retaliation – pursuing this federal lawsuit – is
no longer limited to employees’ internal complaints about the workplace
and is now worthy of protection by the First Amendment. See Hagan v.
City of Eugene, 736 F.3d 1251, 1258 (9th Cir. 2013) (holding that the First
Amendment protects speech of a public employee made as a citizen but
does not protect his speech involving “concerns [communicated] up the
chain of command at his workplace about his job duties”). The Court
therefore declines to strike the First Amendment claims from the
supplemental complaint.
The net result was that the case now contained claims that the adverse
employment actions suffered by plaintiffs – imposed by defendants in retaliation for
filing this lawsuit – violated the following laws: (1) the First Amendment freedom of
speech provisions; (2) the Idaho Constitution’s freedom of speech provisions; and (3) the
Idaho Protection of Public Employees Act (Whistleblower Act). Six plaintiffs remain in
Memorandum Decision & Order – page 3
the case: (1) Ledford, (2) Gregston, (3) Penrod, (4) Littlefield, (5) Fordham and (6)
Farnworth.
In their pending motion for summary judgment, the defendants challenge the
claims as being filed too late and as being substantively deficient. The Court will
consider each challenge below.
First Amendment Claims – Statute of Limitations
Defendants argue that three of the plaintiffs – Ledford, Littlefield & Farnworth –
waited too long to file their First Amendment claims. Plaintiffs do not dispute that the
applicable statute of limitations is two years, and that they waited more than two years
after the retaliatory events before filing their First Amendment claims. Instead, they
argue that the First Amendment claims were added to the case through a supplemental
complaint under Rule 15(d) and that the statute of limitations is not applicable to those
claims.
To support their argument, plaintiffs rely on William Inglis & Sons Baking Co. v.
ITT Continental Baking Co., 668 F.2d 1014 (9th Cir. 1981). In Inglis, the Ninth Circuit
discussed supplemental pleadings filed after the commencement of suit under the
relation-back back doctrine and Federal Rule of Civil Procedure 15. Id. at 1057. The
court stated that the statute of limitations should not be an issue where “the original
pleading gave notice that the alleged wrongful conduct was of a continuing nature,” and
the “supplemental pleadings addressed the same conduct.” Id. When, however, the
supplemental complaint raises claims unrelated to the allegations in the original
Memorandum Decision & Order – page 4
complaint, or relies on conduct or events different from those pleaded in the original
complaint, there is no “relation back.” Id.
Here, the original complaint contained claims that defendants retaliated against
plaintiffs for their whistleblower actions. The new claims alleged additional retaliatory
actions, this time for pursuing this lawsuit. In a similar action, another court found that
the new retaliation claims related back to the original pleading. Rhodes v. Robinson,
2011 WL 6367746 (E.D. Calif. 2011). There, the original complaint alleged retaliation,
and a supplemental complaint alleged a new round of retaliation for filing that complaint,
putting Rhodes in a posture much like the present case. Rhodes held that because the
original complaint complained about retaliation for filing grievances, the supplemental
complaint raised “no statute of limitations concerns” because it alleged “more retaliation
as a result of Plaintiff filing a complaint regarding those grievances.” Id. at *9.
The same result applies here. The Court therefore rejects defendants’ statute of
limitations challenge to the First Amendment claims of plaintiffs Ledford, Littlefield and
Farnworth.
Whistleblower Claims – Statute of Limitations
Defendants argue that plaintiffs’ claims under the Whistleblower Act are all timebarred. But the analysis above regarding the First Amendment claims applies with equal
strength to the Whistleblower Act claims. Once again, the original complaint contained
such claims, and the supplemental complaint simply alleged new Whistleblower Act
claims arising since the filing of the complaint. Under Ingles, the limitations period does
not apply. This limitations argument must therefore be denied.
Memorandum Decision & Order – page 5
First Amendment Claims – Effect of 9th Circuit Decision
Defendants argue that this Court was mistaken when it held – as quoted above –
that “pursuing this lawsuit” was “worthy of protection under the First Amendment.”
Defendants claim that because the Ninth Circuit held that, with regard to the original
complaint, that the plaintiffs had either not been retaliated against, or were not speaking
on matters of public concern, their pursuit of this lawsuit cannot possibly be worthy of
protection under the First Amendment.
The Court disagrees. This argument ignores the fact that the Second Amended
Complaint contains claims that plaintiffs were subject to retaliation for pursuing claims
under the Whistleblower Act. Those claims were not before the Ninth Circuit and were
not affected by its decision. Pursuing such claims through a lawsuit is conduct protected
by the First Amendment. See Dahlia v. Rodriquez, 735 F.3d 1060 (9th Cir. 2013) (en
banc) (holding that “the First Amendment generally protects public employee
whistleblowers from employer retaliation”). The Court therefore rejects this argument of
defendants.
Whistleblower Act Claims – Substantive Challenge
Defendants argue that the claims under the Whistleblower Act should be
dismissed for various reasons. These arguments have been previously rejected by the
Court and that analysis will not be repeated here – it is enough to say that this line of
argument is denied.
Memorandum Decision & Order – page 6
Injunctive Relief - Standing
The plaintiffs seek injunctive relief that would bar the defendants from applying
certain workplace policies to employees and would reinstate some of the plaintiffs to
positions they held prior to a retaliatory action. The Defendants challenge the standing of
plaintiffs to enjoin workplace policies that would benefit all employees, even those not
named as plaintiffs. Defendants argue that plaintiffs do not have standing to advocate for
co-employees who are not parties to this action. But this argument ignores the plaintiffs’
allegations that the workplace policies sought to be enjoined were applied specifically
against them individually. Thus, they have the necessary injury in fact to establish
standing to challenge agency-wide policies. While others might benefit from injunctive
relief, the defendants cite no authority that such an agency-wide benefit destroys
plaintiffs’ standing.
There is, however, a problem with the claims of plaintiff Shane Penrod. When he
was turned down for the Transport Coordinator position – a rejection he alleges was in
retaliation for his whistleblowing activities – he immediately left the Juvenile Corrections
Department and obtained a job with the Idaho Department of Labor. When the
defendants alleged in their summary judgment briefing that Penrod was making more
money in his new job and had not expressed any desire to return to his old job, plaintiffs
failed to respond. This record raises a serious question whether there is still a case or
controversy regarding Penrod’s claims because it does not appear that he would benefit
from any injunctive relief barring the application of certain policies and authorizing
reinstatement for terminated or demoted employees.
Memorandum Decision & Order – page 7
A similar concern was raised in Bayer v. Neiman Marcus Group, Inc., 861 F.3d
853, 865 (9th Cir. 2017). There, an employee of Neiman Marcus named Bayer claimed
that he was the victim of discrimination based on his disability, in violation of the
Americans With Disabilities Act (ADA). Among other relief, he sought an injunction
barring Neiman Marcus from attempting to coerce employees into waiving their ADA
rights. But because Bayer no longer worked at Neiman Marcus, this particular injunctive
relief was not available to him:
With respect to the request for an injunction prohibiting Neiman Marcus
from attempting to intimidate its employees and potential employees into
waiving their ADA rights, Bayer has produced no evidence to show he can
reasonably be expected to benefit from such relief. A former employee
currently seeking to be reinstated or rehired may have standing to seek
injunctive relief against a former employer. But a former employee has no
claim for injunctive relief addressing the employment practices of a former
employer absent a reasonably certain basis for concluding he or she has
some personal need for prospective relief. Given that Bayer is no longer
employed with Neiman Marcus and has produced no evidence to suggest
he plans to seek employment with Neiman Marcus again, there is no basis
upon which to conclude he has a reasonably certain need for prospective
relief pertaining to its future employment practices.
Id. at 865 (citations omitted). Like Bayer, Penrod is no longer employed with the entity
he sued and has not produced any evidence that he would benefit from injunctive relief.
Given the plaintiffs’ failure to respond to this argument, and the Court’s own review of
the record, the Court must agree with defendants. Under these circumstances, Bayer is
determinative. There is no evidence to suggest that Penrod wants to leave the
Department of Labor and return to the Department of Juvenile Corrections, and any
injunctive relief granted to bar the defendants from applying certain workplace policies
would have no impact upon him. Because the sole remaining relief sought by Penrod is
Memorandum Decision & Order – page 8
injunctive in nature, and because Bayer bars any relief given his circumstances, Penrod
must be dismissed as a plaintiff.
Defendants also argue that Fordham and Farnworth must be dismissed for the
same reasons Penrod was dismissed. Defendants argue that Farnworth accepted a
medical layoff on January 23, 2018, and that there is no evidence that his health has
improved to the point where he could return. But none of this is in the record submitted
by defendants in support of their motion. Farnworth’s deposition was taken, and excerpts
were submitted by plaintiffs, but none of those excerpts discuss his health or his medical
layoff. In the absence of a record on which defendants rely, the Court refuses to grant the
defendant’s summary judgment motion. With regard to Fordham, he still works at the
Department of Juvenile Corrections and hence would benefit if certain workplace policies
are changed. This portion of the summary judgment motion will likewise be denied.
Conclusion
Many of defendants’ remaining arguments have been examined before and denied,
and none of the remaining arguments warrant summary judgment. The Court will
therefore largely deny defendants’ motion for summary judgment but will grant that
portion that seeks to dismiss the claims of plaintiff Shane Penrod.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for summary
judgment (docket no. 126) is GRANTED IN PART AND DENIED IN PART. It is
Memorandum Decision & Order – page 9
granted to the extent it seeks dismissal of the claims of plaintiff Shane Penrod. It is
denied in all other respects.
DATED: January 8, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge
Memorandum Decision & Order – page 10
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