Wilson v. St. Luke's Regional Medical Center, Ltd. et al

Filing 51

MEMORANDUM DECISION AND ORDER. IT IS ORDERED that Defendant's Motion for Summary Judgment 38 is GRANTED. Defendants' Requests to Take Judicial Notice (Dkts. 38-3, 49-1) are GRANTED. 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
REBECCA WILSON, an individual
Case No. 1:13-cv-00122-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
ST. LUKE’S REGIONAL MEDICAL
CENTER, LTD., an Idaho corporation;
MIKE McGRANE, an individual;
KEVIN KRAAL, an individual;
ROURKE YEAKLEY, an individual;
JAMES PENNINGTON, an individual;
and BRANDY BARTHOLOMEW, an
individual,
Defendants.

INTRODUCTION
Before the Court is defendants’ motion for summary judgment (Dkt. 38). For the
reasons expressed below, the Court will grant the motion.
FACTS
Plaintiff Rebecca Wilson worked as a flight nurse for Air St. Luke’s for
approximately ten years. She was fired on December 12, 2011. The “Corrective Action

MEMORANDUM DECISION AND ORDER - 1

Form” documenting Wilson’s termination states that there had been “serious performance
concerns regarding recent transport events.” Dec. 12, 2011 Corrective Action Form, Dkt.
38-11, at 1. The form references two transports: (1) a November 30, 2011 transport of a
maternity patient from Emmett, Idaho to St. Luke’s in Boise, Idaho; and (2) a December
4, 2011 transport of a cardiac patient from Burley, Idaho to Utah.
Regarding the November 30, 2011 transport, the form states that Wilson “refused
the transport without consultation with medical control and without assessing the
patient.” Id. Wilson disagrees with this characterization. It is undisputed, however, that
Wilson questioned whether she should have been assigned to the transport; she believes
the transport should have been assigned to St. Luke’s “Maternal/Fetal” team. Plaintiff’s
Response, Dkt. 46, at 10. Wilson indicates that the pregnant patient was experiencing
complications and she did not feel comfortable with her ability to care for a premature
baby in the event of a delivery, and, further, that the ambulance she was in did not have
the proper equipment to care for a premature baby. Ultimately, another team was
assigned to the transport.
As for the December 4, 2011 transport, the form states that Wilson initially
“appropriately question[ed]” the decision to send a cardiac patient from Burley, Idaho to
Utah, rather than to a closer facility. Dkt. 38-11, at 2. It goes on to state that after being
informed that the sending physician and the patient were aware of the risks, Wilson
nonetheless “continued to repeatedly question the sending physician regarding the
decision to send the patient to Salt Lake City and interven[ed] between the patient, the

MEMORANDUM DECISION AND ORDER - 2

sending physician, and the receiving physician without having assessed the patient.” Id.
Wilson disputes St. Luke’s characterization of this transport. She does not
dispute, however, that she questioned the advisability of the transport, or that she spoke
with the sending physician, Dr. McClain. It is also undisputed that Wilson was not at the
patient’s bedside, although she had received information about the patient’s condition.
Ultimately, Wilson’s supervisors pulled her and her coworker, Terence McCue, off the
transport. Another team – defendants James Pennington and Brandy Bartholomew – then
completed the transport.
Shortly after completing the transport, Bartholomew spoke to defendant Dr.
Rourke Yeakley. See Transcript, Dkt. 39-5. Dr. Yeakley is a co-medical director for Air
St. Luke’s and is one of Wilson’s supervisors. During her conversation with Dr.
Yeakley, Bartholomew criticized Wilson’s conduct. She told Dr. Yeakley that she
believed Wilson and Wilson’s coworker Terence McCue had jeopardized Air St. Luke’s
business relations with Dr. McClain. She asked Dr. Yeakley if there would be “some
follow up.” Id. at 4.
The following day, Pennington expressed his concerns about the December 4
transport in an email to Dr. Yeakley, Dr. Kraal (another one of Wilson’s supervisors), and
various St. Luke’s employees. See Dkt. 39-4. Dr. Kraal, who is also a medical director
for Air St. Luke’s, responded to Pennington’s email after listening to the recordings of
Wilson’s conversations with Dr. McClain and others. Among other things, Dr. Kraal
wrote:

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I spoke with Dr. McClain last night. After reviewing the tapes I am
frankly embarrassed by this incident. . . . I am struck by number of
things displayed by Beckie [Wilson] and Terry [McCue]. First, trying to
get dispatch essentially to tell the sending facility issues related to
clinical medicine. Second, not having a clue about the patient’s
condition and deciding what is best for him, despite the decision of a
competent and quite thoughtful and compassionate physician who is at
the bedside. Third, blatant exag[g]erations if not outright lies regarding
transport times. Beckie is so clearly simply trying to get out of this
transport it makes me crazy. Fourth, the number of calls back and forth
for a very straightforward transport. . . . I could go on. Frankly, I am
furious. I laid in bed last night going over those tapes, and my
conversation with Dr. McClain, and had those two been near me they
would still be recovering. This is a not tolerable situation for me.
Dr. McClain was intimidated that a Boise ED doc would call him about
this. He was grateful that you decided to send the twin fall crew
eventually, but as I listen to the tapes I see how Beckie (with the
encouragement of Terry) manages to suck more and more people into
this. Terry did say one very accurate thing when he was on hold.
“allright, that’s it. I’m done with this” He is. They both are. We have
worked too hard to create a working relationship with our facilities to
ever risk those two again. We all know this is a repetitive pattern. I feel
badly that they were allowed to work here long enough to do something
so blatant.
Dec. 6, 2011 email from Dr. Kevin Kraal to Susan Gidding, James Pennington, Michael
McGrane, Dr. Roarke Yeakley, and Deb Koch, Dkt. 39-4, at 1. 1
Shortly after Dr. Kraal wrote this email, Dr. Kraal and Dr. Yeakley withdrew their
“approval for Wilson to be credentialed and provide services as EMS personnel for Air

1

During discovery, one of the parties designated this email (and other documents quoted in this
decision) as “confidential” based on the Court’s entry of a stipulated protective order. See Aug. 15, 2013
Order, Dkt. 21. After having reviewed this motion and the supporting papers, however, the Court
concludes that portions of the documents quoted in this decision are not subject to protection.
Accordingly, this Order will not be filed under seal.

MEMORANDUM DECISION AND ORDER - 4

St. Luke’s.” See Dec. 8, 2011 Letter from Kraal and Yeakley to McGrane, Dkt. 38-14.
St. Luke’s terminated Wilson a few days later.
Wilson responded with this lawsuit against St. Luke’s and various individual
defendants. She alleges state-law claims for (1) unlawful reprisal in violation of Idaho’s
Human Rights Act; (2) wrongful termination in violation of public policy; (3) tortious
interference with contract; (4) tortious interference with prospective economic advantage;
and (5) defamation.
She also alleges a single federal claim – violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213. Regarding this claim, Wilson says
that on November 22, 2011 – roughly three weeks before she was fired – Wilson’s
coworker, McCue, named her as a witness in his lawsuit against the hospital. In his
lawsuit, McCue was pursuing claims that the hospital had violated the ADA. Wilson had
also been supportive of McCue in the workplace by, among other things, refusing to
downgrade a stellar performance review she had written for him. Wilson alleges that St.
Luke’s fired her in retaliation for supporting McCue’s ADA lawsuit.
LEGAL STANDARD
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

MEMORANDUM DECISION AND ORDER - 5

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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. 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 dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). 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 her favor. Deveraux, 263 F.3d at 1076. 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 dispute of material fact
exists. Celotex, 477 U.S. at 324.

MEMORANDUM DECISION AND ORDER - 6

However, 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) (quotation omitted). 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).
ANALYSIS
1.

Wilson’s ADA Claim
Wilson alleges that St. Luke’s violated the ADA by unlawfully retaliating against

her because she supported her coworker’s pursuit of an ADA claim against the hospital.
The relevant part of the ADA, 42 U.S.C. § 12203(a), provides that
No person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this
chapter or because such an individual made a charge, testified,
assisted, or participated in any manner in an investigation
proceeding, or hearing under this chapter.
To establish a prima facie case of retaliation under this statute, Wilson must show that (1)
she engaged in activity protected by the ADA, (2) she suffered an adverse employment
action, and (3) there was a causal link between the two. Brown v. City of Tucson, 336
F.3d 1181, 1186-87 (9th Cir. 2003). If Wilson establishes a prima facie retaliation case,
she will avoid summary judgment unless St. Luke’s offers legitimate reasons for the
adverse employment action. At that point, under the framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the burden shifts back to
Wilson to demonstrate a triable issue of fact as to whether the proffered reasons are

MEMORANDUM DECISION AND ORDER - 7

pretextual. See Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004).
For purposes of this motion, defendants concede that Wilson has established a
prima facie case of retaliation. See Reply, Dkt. 49, at 5. The burden thus shifts to St.
Luke’s to offer legitimate reasons for firing Wilson. St. Luke’s has met this burden. It
has offered evidence that Dr. Yeakley and Dr. Kraal withdrew their approval of Wilson
as an Air St. Luke’s nurse because they believed she made decisions that either
compromised patient care or disrupted Air St. Luke’s relationship with other medical
providers. See, e.g., Yeakley Depo., Dkt. 39-1, at 46:22 to 47:13; 61:2 to 62:1; Kraal
Depo., Dkt. 39-2, at 22:19 to 23:14; 44:10 to 45:9; 60:6-11; 63:2-11; McGrane Depo.,
Dkt. 39-3, at 15:10-22; 16:9-21; 19:13-16; 32:25-33:7; 82:11-83:6. Further, it is
undisputed that, at the time they withdrew Wilson’s authorization, neither doctor knew
anything about Wilson’s involvement in her coworker’s pending lawsuit against St.
Luke’s, or any related fact. See Sep. Stmt. Of Undisputed Facts, Dkt. 38-2, ¶ 16. 2 After

2

This is the factual assertion set forth in Paragraph 16 of Defendant’s Statement of Undisputed
Facts, Dkt. 38-2, which plaintiff did not challenge:
At no time prior to Plaintiff’s termination from employment with St. Luke’s, did
Defendants Yeakley and Kraal have any personal knowledge that Plaintiff had been
identified as a witness in the McCue Suit, that she had complained about how McCue
had been treated by St. Luke’s, or that she had been asked to change her 2010 peer
review assessment of McCue, nor did they consider these matters when they decided
to withdraw their approval of her acting as a flight nurse with Air St. Luke’s. Kraal
Decl. ¶ 5, Yeakley Decl. ¶5.
This Court’s Local Rules require a party opposing a motion for summary judgment to file a statement
disputed facts. See D. Idaho Local R. 7.1(c)(2). Wilson did not file a separate statement.

MEMORANDUM DECISION AND ORDER - 8

Dr. Yeakley and Dr. Kraal withdrew their authorization for Wilson, St. Luke’s
suspended, and later terminated, Wilson, indicating that there were “serious performance
concerns regarding recent transport events” and, further, that because Dr. Kraal and Dr.
Yeakly had withdrawn their authorization, Wilson “no longer meets the minimal job
requirements for her position . . . .” Corrective Action Form, Dkt. 38-11, at 1.
Given this explanation, the burden shifts to Wilson to show that St. Luke’s
proffered reasons for firing Wilson were pretextual. Wilson has two ways to establish
pretext: She can do so by “directly persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.” Stegall v. Citadel Broadcasting Co., 350
F.3d 1061, 1067 (9th Cir. 2003). Additionally, Wilson may rely on either circumstantial
or direct evidence. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221-22 (9th
Cir.1998). “‘Direct evidence is evidence which, if believed, proves the fact [of
discriminatory animus] without inference or presumption.’” Id. (citation omitted). If a
plaintiff has direct evidence of a discriminatory motive, a triable issue of fact is created
“even if the evidence is not substantial.” Id. at 1221. If direct evidence is unavailable, a
plaintiff may rely on circumstantial evidence to “to show that the employer’s proffered
motives were not the actual motives because they are inconsistent or otherwise not
believable.” Id. at 1222. Circumstantial evidence, however, “must be ‘specific’ and
‘substantial’ in order to create a triable issue with respect to whether the employer
intended to discriminate on the basis of [a prohibited ground].” Id. at 1222.

MEMORANDUM DECISION AND ORDER - 9

Wilson has not provided direct evidence that St. Luke’s proffered reasons for
firing her were pretextual. Nor has she come forward with the “specific and substantial”
circumstantial evidence necessary to create a triable issue with respect to whether St.
Luke’s intended to discriminate against her based on her support of McCue’s ADA
lawsuit. In her effort to establish pretext with circumstantial evidence, Wilson argues she
that she was a proficient nurse; that there was no prior documentation of her failing to
meet her job proficiencies; that Dr. Yeakley and Dr. Kraal wrongly withdrew their
authorization; and that St. Luke’s wrongly relied on this withdrawal in terminating her.
See Response, Dkt. 46, at 2-8. Wilson also argues that because defendant Mike McGrane
listened to the audio recordings related to the December 4, 2011 transport, at a minimum,
he “must have known that Ms. Wilson did not display a lack of proficiencies of her job.”
Response, Dkt. 46, at 6. Defendant McGrane was the director of Air St. Luke’s at the
time, and thus was responsible for personnel evaluations.
In advancing these arguments, Wilson often veers into arguing that St. Luke’s
wrongly terminated a competent nurse. But that is not the question before the Court.
Rather, the question is whether St. Luke’s honestly believed the reasons for its actions.
Thus, if St. Luke’s honestly believed Wilson had serious performance issues, and that the
withdrawal of authorization resulted in her failure to meet the minimum job
requirements, then this is enough. “[C]ourts only require an employer honestly believed
its reason for its actions, even if its reason is foolish or trivial or even baseless.”
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (citation

MEMORANDUM DECISION AND ORDER - 10

omitted; holding that the plaintiff’s evidence of pretext was insufficient because the
plaintiff failed to present evidence that the employer did not honestly believe its proffered
reasons for its action).
After examining the evidence in the record, the Court concludes that Wilson has
failed to point to any substantial, specific evidence that would allow a rational juror to
conclude that St. Luke’s harbored a retaliatory motive, or that it was lying when it said
Wilson had performance issues and no longer met the minimum job requirements due to
the withdrawal of authorization. To the contrary, the undisputed facts show that Wilson
was terminated a few days after the December 4, 2011 transport, and that her supervisors
– who knew nothing about her support of McCue’s lawsuit – concluded that Wilson’s
conduct warranted corrective action, including withdrawal of their authorization and,
ultimately, termination.
Because Wilson has failed to meet her burden at the third phase of the McDonnell
Douglas burden shifting framework, the Court will grant defendants’ motion for
summary judgment on Wilson’s retaliation claim under the ADA.
In addition to alleging retaliation under 42 U.S.C. § 12203(a), Wilson also alleges
“retaliation” under sub-section (b) of Section 12203. See Compl., Dkt. 1, at 8 (Wilson
alleges a single claim for “Unlawful Retaliation in Violation of 42 U.S.C. § 12203(a) and
(b)”) (emphasis added). Sub-section (b) does not expressly deal with retaliation,
however. Rather, this sub-section makes it unlawful to “coerce, intimidate, threaten or
interfere with any individual in the exercise or enjoyment of, or account of his or her

MEMORANDUM DECISION AND ORDER - 11

having exercised or enjoyed . . . any right granted or protected by this chapter.” 42 U.S.C.
§ 12203(b). In alleging her single ADA claim, Wilson alleged that St. Luke’s conduct
related to her suspension and termination “was retaliation and/or coercion, intimidation,
and threats . . . .” Compl., Dkt. 1, ¶ 37 (emphasis added).
In opposing defendants’ motion for summary judgment, Wilson does not
distinguish between sub-sections (a) or (b). Rather, she generally focuses on a retaliation
analysis, which would fall under § 12203(a). Further, Wilson does not argue or suggest
that, in her case, the outcome or analysis would be different under § 12203(b). Indeed,
Wilson does not even separately cite the two sections in her brief. See Response Br., Dkt.
46, at 2-8. Under these circumstances, the Court concludes that Wilson’s § 12203(b)
claim fails for the same reasons her § 12203(a) claim fails.
2.

Wilson’s Idaho Human Rights Act Claim
The Idaho Human Rights Act provides a means for enforcing the federal

Americans with Disabilities Act within the State of Idaho. Idaho Code § 67-5901(1). The
Idaho Supreme Court analyzes retaliation claims under the state act in accordance with
the McDonnell Douglas burden-shifting framework described above. Frogley v.
Meridian Joint School Dist. No. 2, 314 P.3d 613, 619 (Idaho 2013). Wilson’s claim
under the Idaho Human Rights Act thus fails for the same reasons her ADA claims fail.
3.

Idaho’s Peer-Review Statutes
Defendants argue that Idaho’s peer-review act, see Idaho Code §§ 39-1392 et seq.

immunizes them from Wilson’s remaining state-law claims, which include wrongful

MEMORANDUM DECISION AND ORDER - 12

termination in violation of public policy, tortious interference with contract, tortious
interference with prospective economic advantage, and defamation.
The Idaho Legislature enacted the peer-review act “[t]o encourage research,
discipline and medical study by certain health care organizations for the purposes of
reducing morbidity and mortality, [and] enforcing and improving the standards of
medical practice in the state of Idaho, . . . .” Idaho Code § 39-1392. All hospitals subject
to the act are required to form peer-review committees, which are responsible for
“reviewing the professional practices of the members of the hospital’s medical staff . . . .”
§ 39-1392f.
The act provides two separate protections related to the peer-review process. First,
peer-review materials are protected from discovery in legal proceedings. See § 39-1392b.
Second, those who participate in the peer-review process are immunized from civil
liability. See § 39-1392c.
Defendants focus on the civil immunity provision set forth in § 39-1392c, 3 which
provides as follows:

3

Defendants also invoke Idaho Code § 39-1393(10), but the applicability of this section is
limited to potentially immunizing defendants Kraal and Yeakley from any liability that may arise from
notifying Idaho’s Department of Health & Welfare that Wilson was no longer authorized to provide
emergency medical services for Air St. Luke’s. See Idaho Code § 39-1393(10) (immunizing “any
person . . . that provides notification as required by law . . . from any civil or other liability arising from
providing the notification.” Idaho Code § 39-1393(10) (emphasis added). The Court will address this
issue below, in connection with Wilson’s argument that Kraal and Yeakley defamed her by providing this
notice.

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The furnishing of information or provision of opinions to any health
care organization or the receiving and use of such information and
opinions shall not subject any health care organization or other person to
any liability or action for money damages or other legal or equitable
relief.
§ 39-1392c. Based on this statute, defendants broadly argue that “[s]ince the termination
of Plaintiff’s employment was indisputably a ‘use’ of Defendants’ ‘information’ and
‘opinions,’ her dismissal and everything connected to it falls within the protective reach
of Idaho Code § 13-1392.” Mot. Mem., Dkt. 38-1, at 11.
The conceptual difficulty with defendants’ argument is that the hospital did not, at
any point, form a peer-review committee to review Wilson’s performance. Thus, it does
not appear that the decision to fire Wilson was the result of any decision or study by a
peer-review committee. Under these facts, immunizing defendants under the peer-review
act does not seem to further its underlying purpose.
But despite this conceptual difficulty, defendants’ argument gains some traction
because the statutory definitions of “peer review records” and “peer review” do not
explicitly require that peer-review activity be conducted by a formal peer-review
committee. Rather, the term “peer review records” is broadly defined to include “all
evidence of interviews, reports, statements, minutes, memoranda, notes, investigative
graphs and compilations and the contents thereof, and all physical materials relating to
peer review of any health care organization.” Idaho Code § 39-1392a(12).
“Peer review,” in turn, is defined as follows:
“Peer review” means the collection, interpretation and analysis of data
by a health care organization for the purpose of bettering the system of

MEMORANDUM DECISION AND ORDER - 14

delivery of health care or to improve the provision of health care or to
otherwise reduce patient morbidity and mortality and improve the
quality of patient care. Peer review activities by a health care
organization include, without limitation:
(a) Credentialing, privileging or affiliating of health care providers as
members of, or providers for, a health care organization;
(b) Quality assurance and improvement, patient safety investigations
and analysis, patient adverse outcome reviews, and root-cause
analysis and investigation activities by a health care organization;
and
(c) Professional review action, meaning an action or recommendation of
a health care organization which is taken or made in the conduct of
peer review, that is based on the competence or professional conduct
of an individual physician or emergency medical services personnel
where such conduct adversely affects or could adversely affect the
health or welfare of a patient or the physician's privileges,
employment or membership in the health care organization or in the
case of emergency medical services personnel, the emergency
medical services personnel’s scope of practice, employment or
membership in the health care organization.
§ 39-1392a(11).
Defendants also point out that in Nightengale v. Timmel, 256 P.3d 755, 759-60
(Idaho 2011), the Idaho Supreme Court concluded that a document may qualify as a peerreview record even if it was not created “during an actual peer review, . . . .” Id. at 760.
Rather, the court concluded that the statute defining “peer review records” “simply
requires that the document ‘relat[e] to’ peer review of a health care organization.” Id.
Nightengale does not sweep as broadly as defendants suggest, however, and the
facts are distinguishable. The key teaching from Nightengale is that if a person drafts a
letter that is “clearly intended to initiate the peer review process,” then that letter will be

MEMORANDUM DECISION AND ORDER - 15

protected from discovery because it “relates to” peer review. Id. at 761.
In Nightengale, the defendant doctor failed to diagnose a clot in one of
Nightengale’s vascular arteries. That condition cut off circulation to Nightengale’s arm,
which eventually was amputated above the elbow. The orthopedic surgeon who
performed the amputation (who was not a party to the litigation) sent two letters related
to Nightengale’s care. Id. at 759. The surgeon’s “clear intent in writing these letters was
to point out potential flaws he suspected might have occurred in Nightengale’s care, such
as her being overlooked because she was homeless and Hepatitis B and C positive, and to
request review and investigation of those flaws in the hospitals’ respective care.” Id. at
760 (emphasis in original). The subject line of both letters stated “‘Re: Case Review,
Janet Bell [Nightengale].” Id. One of the letters stated, “Please review and examine this
case. I think this is a valuable case that should be reviewed by everyone including
Vascular Surgery, Orthopedics, Hand Surgery, and the Emergency Room Department.”
Id. at 760.
Under these circumstances, the Nightengale Court easily concluded that both
letters “related to” peer review, and were thus privileged from discovery. See id. (“Both
letters relate to [q]uality assurance and improvement,’ ‘investigation activities,’ and
‘professional review’ of Nightengale’s treating doctors and hospitals.”) (quoting Idaho
Code § 39-1392a(11).
Unlike in Nightengale, none of the communications at issue here were “clearly
intended” to initiate the peer-review process. For example, in reviewing the disputed

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December 5/6, 2011 email thread, Dkt. 39-4, the Court cannot conclude – particularly in
the context of a summary-judgment motion – that the various authors clearly intended to
initiate the peer review process. Wilson indicates that although employees sometimes
discussed transports after the fact in team meetings or via committee, “[t]he December 5
and 6, 2011 emails . . . was [sic] not how we reviewed transfers.” Wilson Aff., Dkt. 47-7,
¶ 15. Another former St. Luke’s employee has also stated that the comments made in the
December 5 and 6 emails “were not common place peer review of transfers; . . . .”
Gidding Aff., Dkt. 47-10, ¶ 7. And none of the individual defendants have stated that, in
sending the various communications, they intended to trigger the peer-review process.
Finally, a key focus of these communications is not directly related to patient care or the
best delivery of health care services; rather, the authors appear mainly concerned with
protecting Air St. Luke’s business.
Under these circumstances, the Court cannot conclude that the “information and
opinions” defendant relied upon in terminating Wilson are “peer review” materials under
the statute. As a result, the Court will not grant summary judgment on the state-law
claims based on the immunity set forth in Idaho Code § 39-1392c. Rather, the Court will
examine each of these claims individually, beginning with Wilson’s claim that her
termination violated public policy.
4.

Wrongful Termination in Violation of Public Policy
Generally, at-will employees may be terminated “at any time for any reason

without creating liability.” Edmonson v. Shearer Lumber Prods., 75 P.3d 733, 737

MEMORANDUM DECISION AND ORDER - 17

(Idaho 2003). Nevertheless, if an employer fires an at-will employee for reasons that
contravene public policy, the employer may be liable. Bollinger v. Fall River Rural Elec.
Co-op., Inc., 272 P.3d 1263, 1271 (Idaho 2012). The Idaho Supreme Court has repeatedly
cautioned that this public-policy exception must be narrowly construed; otherwise it
could swallow the rule. Venable v. Internet Auto Rent & Sales, Inc., 329 P.3d 356, 361
(Idaho 2014) (quoting McKay v. Ireland Bank, 59 P.3d 990, 994 (Idaho Ct. App. 2002)).
As the court has explained, “many activities and interests engaged in by employees
benefit the community” but “not all of them are recognized as falling within the public
policy exception.” McKay, 59 P.3d at 994.
Terminating an at-will employee contravenes public policy only if the “employee
is terminated for engaging in some protected activity, which includes (1) refusing to
commit an unlawful act, (2) performing an important public obligation, or (3) exercising
certain legal rights or privileges. Id. Deciding if a public policy is sufficient to protect an
at-will employee from termination is a question of law. Van v. Portneuf Med. Ctr., 212
P.3d 982, 991 (Idaho 2009). “In order to properly state a claim under the public policy
exception, a plaintiff must specifically identify the public policy in question and then
provide evidence to show a violation of the public policy.” Venable, 329 P.3d at 362. A
state’s constitution, statutes, and case law generally dictate its public policy. See
Edmonson, 75 P.3d at 737-38.
Wilson alleges that her termination contravenes various public policies.

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A.

Proficiency

Wilson’s first argument that her termination violated public policy – though not
framed as such – boils down to an argument that St. Luke’s could not properly terminate
her unless she “‘fail[ed]to meet or maintain proficiencies’ of her job.” Response, Dkt. 46,
at 8 (quoting Idaho Admin. Code r. 16.02.02.100.01.b. (Mar. 29, 2010)). The Court is
not persuaded. Wilson was an at-will employee. St. Luke’s had the right to terminate her
– even if she was a proficient nurse – without incurring liability. Thus, Wilson’s
insistence that she was a proficient nurse, as measured by various guidelines set forth in
the Idaho Administrative Code, is not relevant. Rather, the relevant question is whether
Wilson was “terminated for engaging in some protected activity . . . .” Van, 212 P. 3d at
991. Serving as a proficient employee is not “protected activity.” See generally Orloff v.
United Parcel Service, Inc., 490 Fed. Appx. 38, 39 (9th Cir. 2012) (unpublished decision)
(“the Idaho Supreme Court has made clear that the initial trigger for the exception is the
protectable action by the employee whose employment was adversely affected, not the
bad motivation of the employer”).
B.

Patient Safety

Wilson next argues that her termination violated public policy because St. Luke’s
allegedly fired her for “declining a transfer that put a patient at risk.” Response, Dkt. 46,
at 9. Generally speaking, then, Wilson is arguing that her termination implicates the
general public’s health and welfare. The Idaho Supreme Court’s decision in Thomas v.
Medical Center Physicians, P.A., 61 P.3d 557, 565 (Idaho 2002) is instructive on this

MEMORANDUM DECISION AND ORDER - 19

point.
In Thomas, a doctor was fired after he reported that another surgeon in the group
falsified medical records and performed needless surgeries on patients to bolster his
income. Id. at 566. The court concluded that “[r]eporting such misconduct falls under
the public policy exception because the conduct alleged . . . is unlawful and it involves
the health and welfare of the public.” Id. at 565.
The alleged misconduct Wilson complained about is far different from falsifying
medical records or gulling patients into having needless surgeries for financial gain.
Rather, Wilson says St. Luke’s wrongly (1) asked her to transport a pregnant patient who
might deliver a very premature baby; and (2) transported a cardiac patient to Salt Lake
City, rather than to a closer facility. Wilson did not believe she had the necessary skills
to attend to the pregnant patient, and she thought that the cardiac patient should go to a
closer facility. She questioned both transports and, ultimately, was told not to perform
either one. So the question is whether St. Luke’s is – as matter of public policy –
prohibited from firing Wilson for refusing or questioning transports she believed put
patient safety at risk. Or, put differently, the question is whether Wilson engaged in
protected activity by questioning or declining these assignments.
The Court does not believe Wilson’s conduct falls within the narrow public policy
exception. Unlike in Thomas, Wilson was not questioning plainly unlawful, plainly
harmful conduct. Moreover, there is no expert evidence establishing that St. Luke’s put
patient safety at risk by asking Wilson to attend to the pregnant patient. Similarly,

MEMORANDUM DECISION AND ORDER - 20

Wilson has not shown that St. Luke’s put the cardiac patient at risk by flying him to Salt
Lake City rather than to a closer facility. Ultimately, then, the record shows a difference
of opinion as to (1) who should attend a transport; and (2) where a patient should be
transported. The Court cannot conclude that Wilson engaged in “protected activity” by
questioning or declining these transports. Cf. Turner v. Mem’l Med. Ctr., 911 N.E.2d
369, 378 (Ill. 2009) (“Based on the narrow scope of a retaliatory discharge action, the
general concept of ‘patient safety,’ by itself, is simply inadequate to justify finding an
exception to the general rule of at-will employment.”).
C.

McCue’s Lawsuit

Wilson also points to her participation in McCue’s lawsuit against St. Luke’s as
evidence of unlawful reprisal in violation of public policy. However, this claim fails
under the same analysis as her earlier retaliation claims under the ADA and IHRA.
Simply put, the undisputed facts show St. Luke’s terminated Wilson a few days after the
December 4, 2011 transport, and that her supervisors – who knew nothing about her
support of McCue’s lawsuit – concluded that Wilson’s conduct warranted corrective
action, including withdrawal of their authorization and, ultimately, termination.
D.

The Nevada Transport

Finally, Wilson claims that St. Luke’s fired her because she questioned the legality

MEMORANDUM DECISION AND ORDER - 21

of an air-ambulance transport between Elko and Reno, Nevada 4. After completing this
transport, Wilson contacted the Nevada Nursing Board and concluded that she had
violated the law because she was not licensed in Nevada.
Retaliation against an employee who refuses to commit illegal acts would violate
public policy. But at the time of the transport in question, Nevada law did not require
nurses serving as attendants on air ambulances to be licensed. 5 Specifically, as of 2011,
Nevada Revised Statute § 450B.160 provided as follows:
Licensed physicians, registered nurses and licensed physician assistants
may serve as attendants without being licensed under the provisions of this
section. A registered nurse who performs advanced emergency care in an
ambulance or air ambulance shall perform care in accordance with the
regulations of the State Board of Nursing.
Nev. Rev. Stat. § 450B.160.6 (2011); see also Nev. Rev. Stat. § 450B.830(4), (5)
(2011) (exempting the following from the provisions of chapter 450B: “4.
Ambulances and air ambulances based outside this State” and “5. Attendants
based outside this State.”).

4

Defendants say their records do not show any such transport, but they concede that the transport
occurred for purposes of this motion. See Mot. Mem., Dkt. 38-1, at 3 n.2.
5

In addition to Nevada Revised Statute § 450B.160, discussed below, defendants also invoke
Nevada Revised Statute 632.340(5). That statute, however, is irrelevant to this case. It says that nurses
who accompany and care for patients temporarily residing in Nevada do not need to be licensed. See
Nev. Rev. Stat. § 632.340(5) (exempting from licensing nurses “of another state whose engagement
requires [them] . . . to accompany and care for a patient temporarily residing in this State . . . .”). This
case does not involve patients temporarily residing in Nevada.

MEMORANDUM DECISION AND ORDER - 22

Based on this statute, St. Luke’s could properly send out-of-state nurses (i.e., those
not licensed in Nevada) to serve as attendants for in-state Nevada transports. Wilson
contends that she was “performing advanced emergency care,” Response, Dkt. 46, at 13,
but she does not explain why this is so, nor does she point to any evidence to support that
contention. The Court thus concludes that, to the extent it is based upon her conduct
relative to the Nevada transport, Wilson’s claim for wrongful termination in violation of
public policy fails as a matter of law.
5.

Tortious Interference with Contractual Relations
Wilson concedes that the Court should grant summary judgment on her claim for

tortious interference with contractual relations claim. See id. at 19.
6.

Tortious Interference with Prospective Economic Advantage
The Court will also grant summary judgment on Wilson’s claim for prospective

economic advantage. Here, Wilson alleges that individual defendants Kraal, Yeakley,
McGrane, Bartholomew, and Pennington interfered with her employment relationship
with St. Luke’s. As a general rule, a party cannot interfere with its own contract, or with
its economic relations with a third party. Rather, “a claim for tortious interference with
contractual relations requires proof that the defendant is a stranger to the contract with
which the defendant allegedly interfered and to the business relationship giving rise to the
contract.” Beco Constr. Co. v. J-U-B Eng’rs, 184 P.3d 844, 850 (Idaho 2008). The
stranger-to-the-contract rule applies with equal force to claims for tortious interference
with prospective economic relations. See, e.g., 44B Am. Jur. 2d Interference § 7. Thus,

MEMORANDUM DECISION AND ORDER - 23

for Wilson’s interference to be viable, she must establish that the individual defendants
are strangers to her employment relationship with St. Luke’s.
The Court easily concludes that three defendants – McGrane, Pennington, and
Bartholomew – are not “strangers” to Wilson’s employment relationship with St. Luke’s.
Each defendant is employed by St. Luke’s and, as such, is an agent for the hospital. See
generally Beco, 184 P.3d at 849. Agents, in turn, are liable for interference only if their
actions are “‘outside [their] scope of duty to the corporation.’” Id. (citing Ostrander v.
Farm Bureau Mut. Ins. Co., 851 P.2d 946, 950 (Idaho 1993).
There is not sufficient evidence in the record from which a rational juror could
conclude that McGrane, Pennington, or Bartholomew acted outside the scope of their
duties to St. Luke’s. Generally, work performed to serve the employer falls within the
course and scope of employment, whereas actions pursued for a purely personal purpose
do not. See Finholt v. Cresto, 155 P.3d 695, 698 (Idaho 2007); see also Wooley Trust v.
DeBest Plumbing, Inc., 983 P.2d 834, 838 (Idaho 1999) (“The employee must be engaged
in some type of work that is assigned to him or her in the general sense of doing
something to serve the employer.”).
Wilson has not pointed to any evidence tending to show that McGrane,
Barthlomew or Pennington acted purely for their own purposes. Instead, she relies on
broad, conclusory statements such as this one: “Defendants McGrane, Kraal, Yeakley,
Pennington, and Bartholomew all were acting in an intentional, wrongful manner, which
was not within the scope of their agency.” Response, Dkt. 46, at 19. These sorts of

MEMORANDUM DECISION AND ORDER - 24

conclusory statements are not sufficient to survive a summary-judgment motion. The
Court will therefore grant defendants’ motion on this claim as to McGrane, Pennington,
and Bartholomew.
The more difficult question is whether Dr. Kraal and Dr. Yeakley are “strangers”
to Wilson’s employment relationship with St. Luke’s, and thus capable of interfering with
that relationship. Neither doctor is employed by St. Luke’s. They provide services to St.
Luke’s as independent contractors. 6 Further, their contracts with St. Luke’s state that
they are not to be treated as St. Luke’s employees or agents “for any purpose.” EMISLRMC Agmt., Dkt. 39-7, at 7; Kraal-SLMVRC Agmt., Dkt. 39-9, at 5.
Despite this, Dr. Kraal and Dr. Yeakley argue that they cannot be liable on the
interference claim based on the Idaho Supreme Court’s decision in Beco Construction
Co. v. J-U-B Engineers, 184 P.3d 844 (Idaho 2008). In Beco, a general contractor for a
city project sued the project engineer for interference with the construction contract. The
project engineer, though not a city employee, was acting as the city’s agent and for the
city’s benefit. As a result, the court concluded that the engineer could not logically be
considered a “stranger” to the contract between the city and its general contractor. Id. at
850.

6

Dr. Kraal entered into a Medical Director Agreement with St. Luke’s Magic Valley Regional
Medical Center, Ltd. See Ex. C to McGrane Dec., Dkt. 39-9. Dr. Yeakley provides services to St. Luke’s
through Emergency Medical Services of Idaho (EMI). EMI, in turn, has a Professional Services
Agreement with St. Luke’s Regional Medical Center, Ltd. See Ex. A to McGrane Dec., Dkt. 39-7.

MEMORANDUM DECISION AND ORDER - 25

In AMX International, Inc. v. Battelle Energy Alliance, LLC, 744 F. Supp. 2d 1087
(D. Idaho. 2010), this Court narrowly construed Beco, concluding that the Idaho Supreme
Court had not clearly indicated that the stranger-to-the-contract doctrine should be
extended to shield anyone “beyond parties to the contracts or their agents, . . . .” Id. at
1092. 7 AMX further expressly rejected the argument that an entity with “any beneficial or
economic interest in, or control over” the business relationship underlying the allegedly
disrupted contract, is not a stranger to the contract. Id. at 1091.
This case, however, presents a different situation. Dr. Kraal and Dr. Yeakley are
not urging the Court to expand the stranger-to-the contract doctrine as broadly as were
the AMX defendants. That is, they are not relying solely upon a claim that they have a
generalized economic or beneficial interest in Wilson’s employment relationship with St.
Luke’s. Rather, they say they perform significant functions relative to Wilson’s
employment with St. Luke’s, including supervising her and assisting in performance
evaluations. See Mot. Mem., Dkt. 38-1, at 26. As such, these doctors contend that they
were “indispensable to Plaintiff’s job, bringing them within the protective reach of Beco.”
Id.
Wilson does not meaningfully address this part of the defendants’ argument. In

7

One commentator described AMX as a “useful corrective . . . to this steady expansion of the
third party requirement” in interference cases.” 14 Callmann on Unfair Competition, Trademarks and
Monopolies § 9.5 (4th ed).

MEMORANDUM DECISION AND ORDER - 26

fact, she does not cite or discuss AMX, which defendants discussed at length in their
opening brief. Nor does she discuss Beco, other than to generally assert that “[t]his case
is not a Beco situation where Defendants McGrane, Kraal, Yeakley, Pennington, or
Bartholomew acted within the scope of their agency when they intentionally interfered
with Ms. Wilson’s employment.” Response, Dkt. 46, at 19. As that last quoted sentence
reveals, Wilson lumps Dr. Kraal and Dr. Yeakley together with the St. Luke’s employees,
and then generally argues that all of these individuals acted outside “the scope of their
agency.” Id. So Wilson seems to accept the idea that, in theory, Dr. Kraal and Dr.
Yeakley can interfere with her contract only if they were acting outside the scope of their
agency.
The ultimate problem with Wilson’s argument, as framed, is that she has failed to
point to any evidence indicating that Dr. Kraal and Dr. Yeakley were acting purely for
their own personal purposes. Rather, as with the other defendants, Wilson relies on
unsupported conclusory statements to make this point. This is not enough. The Court
will therefore grant summary judgment in favor of Dr. Kraal and Dr. Yeakley on this
claim.
7.

Defamation
The Court will also grant summary judgment on Wilson’s defamation claim.
Preliminarily, the Court observes that ruling on defendant’s motion for summary

judgment on the defamation claim is a difficult endeavor because Wilson often speaks in
generalities rather than separately pinpointing and analyzing specific allegedly

MEMORANDUM DECISION AND ORDER - 27

defamatory statements. And even when she does pinpoint and discuss a specific
statement, she prefaces that discussion with this sort of inclusive language: “among other
statements that disregard the truth, Defendant Kraal states that . . . .” Response, Dkt. 46,
at 17 (emphasis added). In concluding her defamation argument, Wilson informs the
Court that “[t]he comments discussed herein are just some of the many comments that are
defamatory and that are the subject of Ms. Wilson’s claims which she should be
permitted to proceed with.” Response, Dkt. 46, at 18-19.
Rather than address the defamation claim generally, the Court will sharpen the
focus by looking to these five documents, which allegedly contain defamatory
communications: (1) a transcript of a December 4, 2011 telephone conversation; (2) a
December 5/6, 2011 email thread; (3) a December 8, 2011 letter from Dr. Kraal and Dr.
Yeakley to McGrane; (4) a December 12, 2011 corrective action form; and (5) a
December 22, 2011 letter defendants Kraal and Yeakley sent to Idaho’s Department of
Health and Welfare. See Dkts. 39-5, 39-4, 38-14, 38-11, and 39-6, respectively. The
Court will address each of these communications in turn below, though it will first lay out
the governing legal standards.
A. The Governing Legal Standard
To establish defamation, a plaintiff must prove that: (1) the defendant
communicated information about the plaintiff to others; (2) the information was
defamatory; and (3) the plaintiff was damaged because of the communication. Clark v.
The Spokesman-Review, 163 P.3d 216, 219 (Idaho 2007).

MEMORANDUM DECISION AND ORDER - 28

There are various privileges that protect the publisher of a defamatory statement
from liability, including the common-interest privilege. As its name suggests, the
common-interest privilege protects individuals from liability if a defamatory statement is
made to someone who shares a common interest with the speaker. Barlow v. Int’l
Harvester Co., 522 P.2d 1102, 1112-13 (Idaho 1974). Whether the common-interest
privilege applies is a matter of law for the court. Id. The privilege is a qualified one; it
can be lost if the publication is made with “express malice.” Id.
Idaho’s Supreme Court has defined “express malice” as “the publication of
defamatory matter in bad faith, without belief in the truth of the matter published, or with
reckless disregard of the truth or falsity of the matter.” Id. at 1113. This definition of
express malice apparently coincides with the Supreme Court’s definition of “actual
malice” in New York Times v. Sullivan, 376 U.S. 254 (1964). Under New York Times,
actual malice exists if a statement is made “with knowledge that the statement made was
false or was made with reckless disregard of whether the statement was false or not.”
Steele v. Spokesman-Review, 61 P.3d 606, 609 (Idaho 2002) (summarizing New York
Times’ definition of actual malice).
Actual malice then, is not malice at all, as that term is commonly understood,
because it has nothing to do with how the speaker feels about the plaintiff. See, e.g.,
Herbert v. Lando, 441 U.S. 153, 199 (1979) (Stewart, J. dissenting) (“[T]he fact of the
matter is that ‘malice’ as used in the New York Times opinion simply does not mean
malice as that word is commonly understood.”). Commonly understood, malice means

MEMORANDUM DECISION AND ORDER - 29

that a person harbors ill will or hostility toward the plaintiff. See id. Actual malice, by
contrast, deals with the speaker’s attitude toward the truth.
In this case, Wilson’s defamation complaint focuses on “actual malice,” as she has
alleged that “Defendants . . . knew, or reasonably should have known, that the
information they communicated was false, and said Defendants made their statements in
bad faith or with reckless disregard for the truth or falsity of the matter.” Compl., Dkt. 1,
¶ 62. Common-law malice is not mentioned in the complaint. Consequently, in
determining whether defendants acted with “express malice,” the Court will focus on
actual malice, i.e., the speakers’ attitude toward the truth, as opposed to the speaker’s
attitude toward the plaintiff personally. Lastly, as a general rule, whether a
communication is motivated by express malice is a fact question for the jury. Barlow, 522
P.2d at 1112-13. If, however, there is no evidence of malice and the undisputed facts
admit only one conclusion, the Court may decide the issue. Id.
B. The December 4, 2011 Telephone Call
Wilson argues that she was defamed during a December 4, 2011 telephone call.
During this call, defendant Brandy Bartholomew spoke to a St. Luke’s dispatcher, then to
Dr. Yeakley, then to a dispatcher again. The call was recorded and later transcribed. See
Transcript, Dkt. 39-5. The general tenor of Bartholomew’s comments is that she believed
Wilson and McCue’s conduct was serious (“a huge issue”) and had significantly
undermined Air St. Luke’s relations with Dr. McClain. Bartholomew also wanted to “see
if there was going to be some follow up . . . .” Dkt. 39-5, at 4.

MEMORANDUM DECISION AND ORDER - 30

The Court has carefully reviewed this transcript and concludes, as a matter of law,
that Wilson was not defamed during the telephone call. For the most part, Bartholomew
was expressing her opinions regarding McCue’s and Wilson’s conduct. Liability does
not attach when a person expresses an opinion about another individual, regardless of
how unreasonable the opinion might be. Wiemer v. Rankin, 790 P.2d 347, 352 (1990).
Further, to the extent Bartholomew did make factual statements, Wilson does not
meaningfully or specifically explain how any of these statements were defamatory.
Finally, even assuming that Bartholomew did defame Wilson during the telephone
call, her statements are protected by the common-interest privilege. The participants in
this conversation (Bartholomew, the dispatcher, and Yeakley) shared a common interest
– providing emergency medical services for St. Luke’s. See Barlow, 522 P.2d at 111213. And although this privilege can be overcome by a showing of malice, the record does
not contain any evidence from which a rational juror could find that Bartholomew “in
fact entertained serious doubts as to the truth of [her] statements” or that she “had a high
degree of awareness of the probable falsity of her statements.” Olson v. EG&G Idaho,
Inc., 9 P.3d 1244, 1249 (Idaho 2000) (quoting Weimer, 790 P.2d at 357).
C. The December 5 and 6, 2011 Emails
The next document Wilson cites in support of her defamation claim is a December
5-6, 2011 email thread. Defendant Pennington began the thread by emailing Dr. Kraal,
Dr. Yeakley, and various St. Luke’s employees. Pennington expressed frustration with
Wilson’s and McCue’s conduct during the December 4 transport of the cardiac patient.

MEMORANDUM DECISION AND ORDER - 31

Dr. Kraal and Bartholomew separately responded.
Although Wilson generally argues that all the emails (Pennington’s,
Bartholomew’s, and Kraal’s) are defamatory, she pinpoints only three specific statements
in this email thread – all of which were made by Dr. Kraal. Specifically, Wilson takes
issue with Dr. Kraal’s statements: (1) that she did “not hav[e] a clue about the patient’s
condition; (2) that she made “blatant exaggerations if not outright lies regarding transport
times”; and (3) that she “manage[d] to suck more and more people into this.” Response,
Dkt. 46, at 17 (quoting from Dr. Kraal’s December 6, 2011 email at Dkt. 39-4).
It is debatable whether these statements are factual assertions or opinions. See
Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990). But even assuming they
are factual in nature, the common-interest privilege applies. See Barlow, 522 P.2d at
1112-13. Malice could overcome this privilege, but Wilson has not pointed to any
evidence that supports a finding of malice. Rather, in arguing that Dr. Kraal was
malicious, Wilson generally relies on broad, conclusory statements. See, e.g., Response,
Dkt. 46, at 17 (Dr. Kraal’s email “expresses malice and disregards the truth.”). Wilson
does specifically say that Dr. Kraal said he “has no idea what the transfer times are,”
Response, Dkt. 46, at 17, but in his deposition, Dr. Kraal testified that although did not
know precise transport times, he generally knows how long transports take. See Kraal
Depo., Dkt. 47, at 58:3 (“I know transport times”); id. at 58:1; see also Kraal Depo., Dkt.
39-2, at 58:1 to 60:2. This evidence cannot support a finding that Kraal acted with malice
in saying that Wilson had blatantly exaggerated, if not outright lied, about transport

MEMORANDUM DECISION AND ORDER - 32

times. The Court thus concludes that the December 5 and 6, 2011 emails do not contain
defamatory statements.
D. The December 8, 2011 Letter
Likewise, the Court cannot find that the December 8, 2011 letter plaintiff relies
upon supports her defamation claim. In this letter, Dr. Kraal and Dr. Yeakley co-signed a
letter to defendant McGrane. In its entirety, this letter reads:
After thorough investigation of the circumstances surrounding the
December 4 request for transport by Dr. McClain from Cassia Regional
Medical Center to Salt Lake City for care not available at the requesting
facility (Flight #25393), it is our decision as Medical Directors of Air St.
Luke’s that we withdraw our approval for Beckie Wilson to be credentialed
and thus provide services as EMS personnel for Air St. Luke’s; this in
accordance with the Idaho Administrative Procedure Act 16 Title 02
Chapter 02: Rules of the Idaho Emergency Medical Services Commission
section 300, 03 b.
Ex. L to Dale Aff., Dkt. 38-14.
This letter is not defamatory. It reports a conclusion reached and an action taken.
The Court is not persuaded by Wilson’s argument that the letter should be viewed as
defamatory because it implies that Wilson “failed to meet or maintain a proficiency of the
job.” Response, Dkt. 46, at 18. But even if that were so, the communication would be
protected by the common-interest privilege. See Barlow, 522 P.2d at 1112-13.
E. The December 12, 2011 Corrective Action Form
The next document Wilson cites in support of her defamation claim is a December
12, 2011 Corrective Action Form. This form documents Wilson’s “involuntary
separation” from St. Luke’s. It is signed by defendant McGrane, as the “Department

MEMORANDUM DECISION AND ORDER - 33

Director” and by a St. Luke’s Human Resources Representative. Within this document,
Wilson is informed that her “performance has been found unsatisfactory” for three
reasons: (1) “unprofessional conduct”; (2) “failure to follow procedure: and (3)
“performance issues.” In a section entitled “Describe the incident(s) – who, what, where,
when, why – describe the behavior,” the report summarizes St. Luke’s version of the
November 30, 2011 and December 4, 2011 transports discussed above. It also references
the fact that St. Luke’s Medical Directors withdrew their authorization.
Preliminarily, Wilson does not allege that St. Luke’s distributed the form to
anyone but her. As a result, the Court concludes that this form, in and of itself, is not a
defamatory communication. Further, to the extent Wilson alleges that the form contains
defamatory statements, the common-interest privilege protects the speakers from liability
as the persons involved in this communication shared a common interest, and there are no
facts in the record from which a rational juror could infer malice.
F. The December 22, 2011 Letter
Finally, Wilson says Kraal and Yeakley defamed her when they sent a letter to
Idaho’s Department of Health and Welfare. See Dkt. 39-6. This letter, in its entirety,
reads as follows: “This letter is intended to inform the EMS Bureau that we, the Medical
Directors for Air St. Luke’s, withdraw our approval for Terry McCue and Beckie Wilson
to provide services as EMS personnel for Air St. Luke’s under our supervision.” See
Dec. 22, 2011 Letter from Kraal & Yeakley, Ex. M to Dale Aff., Dkt. 39-6. This letter
reports an action taken; it does not say anything defamatory. Further, Wilson has not

MEMORANDUM DECISION AND ORDER - 34

meaningfully responded to defendants’ argument that they are shielded from liability for
the act of sending this letter under Idaho Code § 39-1393(10). The Court thus concludes
that defendants did not incur any liability for sending this letter.
ORDER
IT IS ORDERED that
1.

Defendant’s Motion for Summary Judgment (Dkt. 38) is GRANTED.

2.

Defendants’ Requests to Take Judicial Notice (Dkts. 38-3, 49-1) are
GRANTED.

3.

Judgment will be entered separately in accordance with Federal Rule of
Civil Procedure 58.
DATED: December 16, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 35