Summers v. City of McCall et al

Filing 25

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED as follows: Defendants' Motion for Summary Judgment 11 is GRANTED IN PART AND DENIED IN PART. Joint notice due 2/23/2015. Defendant's Motion to Strike 18 is GRANTED IN PART AND DENIED IN PART. Signed by Judge Edward J. Lodge. (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

GERALD A. SUMMERS,
Case No. 1:13-CV-00203-EJL-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
CITY OF MCCALL; a political
subdivision of the State of Idaho, and
EUGENE DRABINSKI, City Manager
for the City of McCall, DONALD
BAILY, Mayor of the City of McCall and
a City Council member, DR. MARCIA
WITTE, M.D., a member of the McCall
City Council, NICOLAS SWANSON, a
member of the McCall City Council,
JACKIE AYMON, a member of the
McCall City Council, LAURA SCOTT, a
member of the McCall City Council, in
their individual and official capacities,
Defendants.

INTRODUCTION
Pending before the Court in the above-entitled matter is the Defendants Motion for
Summary Judgment and related Motion to Strike. The parties have filed their responsive
briefing and the matters are ripe for the Court’s consideration. Having fully reviewed the
record, the Court finds that the facts and legal arguments are adequately presented in the
briefs and record. Accordingly, in the interest of avoiding further delay, and because the
MEMORANDUM DECISION AND ORDER - 1

Court conclusively finds that the decisional process would not be significantly aided by oral
argument, this matter shall be decided on the record before this Court without oral argument.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Gerald A. Summers was appointed as the Chief of Police for the City of
McCall, Idaho in November of 2005 and held that position until his termination on April 11,
2013. The facts giving rise to the claims in this case primarily revolve around the actions of
Defendant Eugene Drabinski who was the interim and later became the permanent City
Manager of the Defendant City of McCall (the “City”).1 Mr. Summers claims that Mr.
Drabinski retaliated against him for various reasons including: supporting another candidate
for the City Manager position, reporting Mr. Drabinski’s aggressive behavior towards Mr.
Summers and his creating of a hostile work environment, conducting a criminal investigation
of the Valley County Sheriff’s Office, filing a Notice of Tort Claim against Valley County,
and reporting Mr. Drabinski’s driver’s license violations. (Dkt. 1.)
Prior to his termination, Mr. Summers had worked for the City’s police department
for several years ultimately ascending to the position of Police Chief. In August of 2012, Mr.
Drabinski was appointed interim City Manager by the City Council while the City searched
for a permanent City Manager. Mr. Summers applied for the permanent position but was
eliminated from contention mid-way through the process. Mr. Summers then shifted his
support to another candidate with whom he had previously worked, Carol Brockmann. Later
1

The Defendants named in this action are: the City of McCall, Eugene Drabinski, the City Manager,
Donald Bailey, the City Mayor, and the members of the City Council - Marcia Witte, Nicolas Swanson, Jackie
Aymon, and Laura Scott. (Dkt. 1.)

MEMORANDUM DECISION AND ORDER - 2

in the search process, Mr. Drabinski submitted his own application for the permanent
position. The City Council eventually appointed Mr. Drabinski as the permanent City
Manager in November of 2012.
While Mr. Drabinski was still acting as interim City Manager, he and Mr. Summers
had many interactions given their respective positions in the City. These interactions reveal
that the two disagreed about several matters and/or had difficulty working together and
communicating. One particular circumstance occurred in September of 2012 during a
meeting at the police department where Mr. Drabinski was presenting the results of a public
survey he had put out concerning the City’s police force.2 Mr. Summers disagreed with the
accuracy and/or reliability of the survey. At the September 2012 meeting, Mr. Summers
alleges that Mr. Drabinski became aggressive and threatening towards him prompting some
who were present to report the actions to the City’s Human Resources Manager. Other
instances evidencing a conflict between the two arise from reports of Mr. Drabinski’s driving
violations, alleged retaliation and general threats of termination made by Mr. Drabinski
towards Mr. Summers, Mr. Drabinski’s accusations challenging Mr. Summers’ loyalty and
statements that Mr. Summers needed to “get on the bus,” and the circumstances surrounding
Mr. Summers’ relationship with the Valley County Sheriff’s Office.
In January of 2013, after being appointed permanent City Manager, Mr. Drabinski met
with Mr. Summers and asked for his resignation and/or threatened to fire him. (Dkt. 1 at

2

As City Manager, Mr. Drabinski commissioned a survey to get the opinions of the community regarding
the police department. (Dkt. 1 at ¶ 47.)

MEMORANDUM DECISION AND ORDER - 3

¶¶ 66-68, 72.) Mr. Summers refused to resign and notified the City Council of Mr.
Drabinski’s retaliation. On February 1, 2013, Mr. Summers was place on paid administrative
leave. (Dkt. 1 at ¶ 75.) Mr. Summers alleges the City did not conduct any investigation into
his reports of retaliation. On February 15, 2013, a Notice of Proposed Personnel Action was
issued wherein Mr. Drabinski proposed that Mr. Summers be terminated. On February 21,
2013, the City Council held a closed session to take up the proposal to terminate Mr.
Summers. At this session Mr. Drabinski gave his reasons for recommending that Mr.
Summers be terminated and asked the City Council to approve his request. Mr. Summers was
then given the opportunity to refute the allegations and present his position to the City
Council. Thereafter, the City Council considered the proposal to terminate Mr. Summers in
three separate sessions. Ultimately, on April 12, 2013, the City Council approved the
proposed action and a Notice of Termination was sent to Mr. Summers. Thereafter, on April
30, 2013, Mr. Summers initiated this case by filing the instant Complaint raising the
following claims:
1.
2.
3.
4.
5.

6.

Wrongful Termination in violation of Idaho Code § 6-2101 re:
investigation of the Valley County Sheriff’s Office
Wrongful Termination in violation of Idaho Code § 6-2101 re: filing a
Notice of Tort Claim against Valley County
Wrongful Termination in violation of Idaho Code § 6-2101 re:
reporting workplace hostility by Mr. Drabinski
Wrongful Termination in violation of Idaho Code § 6-2101 re:
reporting Mr. Drabinski’s driving violation
Wrongful Termination in violation of Idaho Code § 6-2101 re:
supporting a candidate other than Mr. Drabinski for the City Manager
position
Violation of 42 U.S.C. § 1983 - deprivation of property interest in
continued employment without due process

MEMORANDUM DECISION AND ORDER - 4

7.
8.
9.
10.
11.
12.
13.
14

Violation of Idaho Constitution - deprivation of property interest in
continued employment without due process
Violation of 42 U.S.C. § 1983 - deprivation of liberty interest without
due process
Violation of Idaho Constitution - deprivation of liberty interest without
due process
Violation of 42 U.S.C. § 1983 - deprivation of property interest without
due process based on exercise of political speech
Negligent infliction of emotional distress against the City
Negligent infliction of emotional distress against Mr. Drabinski
Negligent Supervision and Training against the City
Breach of the covenant of good faith and fair dealing

(Dkt. 1.) The Defendants have filed this Motion for Summary Judgment as to all of the
claims raised in the Complaint. (Dkt. 11.) The Court finds as follows.
STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil
Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The Supreme Court has made it clear that under Rule 56 summary judgment is
mandated if the non-moving party fails to make a showing sufficient to establish the
existence of an element which is essential to the non-moving party’s case and upon which
the non-moving party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). If the non-moving party fails to make such a showing on any essential
element, “there can be no ‘genuine issue of material fact,’ since a completely failure of proof

MEMORANDUM DECISION AND ORDER - 5

concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Id. at 323.3
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of
summary judgment, must be both “material” and “genuine.” An issue is “material” if it
affects the outcome of the litigation. An issue, before it may be considered “genuine,” must
be established by “sufficient evidence supporting the claimed factual dispute . . . to require
a jury or judge to resolve the parties’ differing versions of the truth at trial.” Hahn v. Sargent,
523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat’l Bank v. Cities Serv. Co. Inc., 391 U.S.
253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib.
v. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371 (9th Cir. 1989).
According to the Ninth Circuit, in order to withstand a motion for summary judgment,
a party
(1) must make a showing sufficient to establish a genuine issue of fact with
respect to any element for which it bears the burden of proof; (2) must show
that there is an issue that may reasonably be resolved in favor of either party;
and (3) must come forward with more persuasive evidence than would
otherwise be necessary when the factual context makes the non-moving party’s
claim implausible.
Id. at 374 (citation omitted).

3

See also, Rule 56(3) which provides, in part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s
response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that is a
genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall
be entered against the adverse party.
MEMORANDUM DECISION AND ORDER - 6

Of course, when applying the above standard, the court must view all of the evidence
in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).
ANALYSIS
1.

Motion to Strike
Defendants have filed a Motion to Strike portions of the Affidavit of Gerald A.

Summers arguing the objectionable portions are inadmissible hearsay, improper opinion
testimony, speculation, and irrelevant. (Dkt. 18.) Plaintiff maintains the statements in the
Affidavit are all based on Mr. Summers’ personal knowledge, relevant, and have the proper
foundation. (Dkt. 19.) The Motion to Strike is granted in part and denied in part. The Court
has reviewed the particular portions of the Affidavit objected to by the Defendants and will
consider the same only to the extent they contain relevant facts of which Mr. Summers has
personal knowledge that would be admissible. See Fed. R. Civ. P. 56(c)(4).
2.

Motion for Summary Judgment
The Motion for summary judgment seeks dismissal as to all of the claims raised in the

Complaint. (Dkt. 11.) In his response brief, Mr. Summers has agreed that claims 5, 7, 9, 11,
13, and 14 should be dismissed. (Dkt. 13.)4 Mr. Summers further states that the
“whistleblower claims,” 1-5, are plead only against the City and not the individual
Defendants in their personal capacity. (Dkt. 13 at 3 n. 1.) As to the twelfth claim, Mr.
4

As to Count 9, Mr. Summers concession to dismissal is conditioned upon this Court’s agreement with
prior decisions in this District. See Sommer v. Elmore County, 903 F.Supp.2d 1067, 1074 (D. Idaho 2012) (citing
cases). The Court has reviewed those decisions and finds the reasoning to be sound and, for the reasons stated
therein, the Court will dismiss the claim raised in Count 9 in this case.

MEMORANDUM DECISION AND ORDER - 7

Summers does not dispute that summary judgment should be granted on this claim as it is
alleged against Mr. Drabinski in his official capacity as City Manager but maintains that the
claim should go forward against Mr. Drabinski in his individual capacity. (Dkt. 13 at 19.)
The Court agrees and will dismiss claims 5, 7, 9, 11, 13, and 14 in their entirety. Claims 1,
2, 3, 4, and 5 are dismissed against the individual Defendants in their personal capacity.
Claim 12 will be dismissed as alleged against Mr. Drabinski in his official capacity. The
Court will discuss the remaining claims below.
A.

Idaho Protection of Public Employees Act Claims

The Idaho Protection of Public Employees Act (IPPEA), Idaho Code § 6-2101 et seq.,
"seeks to protect the integrity of the government 'by providing a legal cause of action for
public employees who experience adverse action from their employer as a result of reporting
waste and violations of a law, rule or regulation.'" Patterson v. State Dept. of Health &
Welfare, 256 P.3d 718, 724 (Idaho 2011) (quoting Van v. Portneuf Med. Ctr., 212 P.3d 982,
987 (Idaho 2009)). This statute is commonly referred to as the "whistle-blower statute."
Mallonee v. State, 84 P.3d 551, 555 (Idaho 2004). "To establish an IPPEA claim, a plaintiff
must establish, by a preponderance of the evidence, 'that the employee has suffered an
adverse action because the employee, or a person acting on his behalf engaged or intended
to engage in an activity protected under section 6–2104, Idaho Code.'" Patterson, 256 P.3d
at 724-25 (quoting Idaho Code § 6–2105(4)).
"Under Idaho's Whistleblower Act, a prima facie case for retaliatory discharge
requires [the employee] to show: (1) he was an employee who engaged or intended to engage
MEMORANDUM DECISION AND ORDER - 8

in protected activity; (2) his employer took adverse action against him; and (3) the existence
of a causal connection between the protected activity and the employer's adverse action." Van
v. Portneuf Med. Cntr., 330 P.3d 1054, 1059 (Idaho 2014) (quoting Van, 212 P.3d at 988).
At trial on a claim for retaliatory discharge, the traditional McDonnell-Douglas balance
shifting analysis applies. Curlee v. Kootenai Cnty. Fire & Rescue, 224 P.3d 458, 463 (Idaho
2008).
At the summary judgment stage however, there is a conflict in Idaho concerning
whether or not the McDonnell-Douglas analysis applies to these types of claims.5 See Brown
v. City of Caldwell, No. 1:10-cv-536-BLW, 2012 WL 892232, at *6-7 (D. Idaho 2012)
(applying the McDonnell-Douglas balancing test at the summary judgment stage to a IPPEA
claim despite the Idaho Supreme Court’s holding in Curlee); Berger v. Madison Cnty., No.
4-12-cv-00535-CWD, 2014 WL 222067, at *7-8 (D. Idaho 2014) (declining to apply the
McDonnell-Douglas analysis to a IPPEA claim at summary judgment based on Curlee);
Berrett v. Clark Cnty. School Dist. No. 161, No. 4:12-cv-00626-EJL-CWD, 2014 WL
4926161 (D. Idaho 2014) (applying the McDonnell-Douglas analysis to a motion for
summary judgment on an Idaho Whistleblower Act claim). This Court finds the McDonnellDouglas burden shifting analysis is appropriate to apply to this Motion for Summary
Judgment. See Brown, 2012 WL 892232, at *6-7 and Berrett, 2014 WL 4926161, at *8.
5

The conflicting case law is the subject of a recent article in The Advocate discussing the two Idaho
Supreme Court decisions of Curlee and Hatheway v. Board of Regents of University of Idaho, 310 P.3d 315 (Idaho
2013). See A. Dean Bennett & Scott E. Randolph, Idaho Supreme Court Reverses Course in Applying the
McDonnell Douglas Burden-Shifting Framework to Summary Judgment Motion, 57-FEB Advocate 28, (Idaho
2014). The Curlee case involved a retaliatory discharge case brought under the IPPEA while the plaintiff in
Hatheway raised several claims, including retaliation, under the Idaho Human Rights Act.

MEMORANDUM DECISION AND ORDER - 9

“When the McDonnell Douglas analysis is applied to cases involving retaliatory
discharge under a whistleblower statute, the test is as follows: (1) the plaintiff must establish
a prima facie case of retaliatory conduct for an action protected by the relevant whistleblower
statute; (2) once the plaintiff demonstrates a prima facie case, the defendant is obligated to
produce evidence which, if taken as true, would permit the conclusion that there was a
non-retaliatory reason for the adverse action; and (3) if the defendant articulates a legitimate
non-retaliatory reason for discharge, then the burden shifts to the plaintiff to prove by a
preponderance of the evidence that the reason the defendant offers is a pretext for retaliatory
conduct.” Curlee, 224 P.3d at 463 (citation omitted); see also Van, 330 P.3d at 1059
(applying the McDonnell-Douglas analysis to the jury verdict in a trial on a retaliation claim).
Applying this standard to the IPPEA claims in this case, the Court finds as follows.
1.

Investigation of Valley County Sheriff’s Office

The first claim for relief alleges that Mr. Summers was a public employee who
engaged in a protected activity, to-wit a lawful investigation of the Valley County Sheriff and
members of her staff. (Dkt. 1 at ¶¶ 51-56, 94-100.)6 Mr. Summers asserts his termination by
the Defendants was causally connected to that protected activity and, therefore, in violation
of the IPPEA. (Dkt. 1 at ¶¶ 94-100.) Defendants agree that Mr. Summers’ investigation of
the Valley County Sheriff’s Office in January of 2012 was a protected activity under the
IPPEA but contend that there is no causal connection between that protected activity and the
adverse employment action. (Dkt. 11 at 8.)
6

Mr. Summers details the circumstances surrounding the investigation in his Affidavit. (Dkt. 15, Summers
Aff. at ¶¶ 21-25.)

MEMORANDUM DECISION AND ORDER - 10

Causation is generally an issue of fact to be decided by a jury. See Van, 212 P.3d at
559. The parties appear to agree that in order to prove the requisite causal connection for an
IPPEA claim, the employee must prove that “but for” the protected activity, the adverse
action would not have occurred. (Dkt. 11 at 8) (Dkt. 13 at 5.)
Mr. Summers argues the causal connection is evidenced by the February 15, 2013
Notice of Intent to Termination where Mr. Drabinski cited the “strained relationship with the
Valley County Sheriff and others in that agency” as a reason for his termination and Mr.
Drabinski’s statements to Mr. Summers that the Valley County Sheriff did not want to work
with Mr. Summers because of the investigation. (Dkt. 13 at 4) (citing Dkt. 15, Summers
Aff.)7 Additionally, Mr. Summers points to Laura Scott’s testimony stating that the City
Council considered their desire to have a better working relationship with Valley County
during its deliberations over whether to confirm the termination. (Dkt. 13 at 4.)8 The
Defendants counter that the investigation had “no bearing” on the decision to terminate Mr.
Summers; pointing out that Mr. Drabinski did not become the City Manager until after the
investigation was complete and the investigation was done with the full knowledge and
approval of the City Council. (Dkt. 11 at 9.)

7

In the February 15, 2013 Notice of Intent to Terminate, Mr. Drabinski listed seven basis for his
recommendation to the City Council that Mr. Summers be terminated as the Chief of Police. (Dkt. 14-2,
Ex. 2 at 33.) Ms. Sivey testified that Mr. Drabinski was responsible for the list of issues that appeared on
the February 15, 2013 Notice. (Dkt. 14-5, Sivey Depo. at 87.)
8

Ms. Scott’s testimony was:
Q. Was Jerry’s investigation of Sheriff Bolen part of the topic of conversation as to whether he
should be terminated or not?
A. It came up. It was not a – it came up a couple of times and the council did generally have a
desire to have a better working relationship with the County.
(Dkt. 14-2.)

MEMORANDUM DECISION AND ORDER - 11

The Court finds Mr. Summers has pointed to evidence of a genuine issue of material
fact as to whether his termination arose from his investigation into the Valley County
Sheriff’s Office; particularly in light of the second reason stated in the Notice of Proposed
Personnel Action which refers to Mr. Summers’ strained relationship with the Valley County
Sheriff and other agency. (Dkt. 14-2, Ex. 16.)9 As such, the burden shifts to the Defendants
to produce evidence of a non-retaliatory reason for the discharge.
In support of the Motion for Summary Judgment, the Defendants have filed Affidavits
of City Council Members Donald Bailey, Laura Scott, Jackie Aymon, Marcia Witte, and
Nicolas Swanson which state that in their deliberations over whether or not to confirm the
termination of Mr. Summers in 2013, the City Council considered the reasons given by Mr.
Drabinski as well as Mr. Summers’ rebuttal made in each of their presentations on February
21, 2013. The Affidavits further state that on April 11, 2013 the City Council voted
unanimously to confirm Mr. Summers’ termination on an at-will, not for cause, basis. (Dkt.
11-6, 11-7, 11-8, 11-9, 11-10.) Each of the City Council members deny that the decision to
approve Mr. Summers’ termination was based in anyway on the Valley County Sheriff’s
Office investigation, the filing of a Notice of Tort Claim, the reports of workplace hostility,
the reports of Mr. Drabinski’s driving violations, and/or the fact that Mr. Summers supported
an alternative candidate for the City Manager position. Two of the City Council members
stated, albeit using different language, that the reason for the decision came down to the
ability of Mr. Summers and Mr. Drabinski to work together. (Dkt. 11- 7, 11-8.) Mr. Bailey
9

The copy of the Notice of Proposed Personnel Action is provided as an attachment to Laura Scott’s
Deposition. (Dkt. 14-2 at Ex. 16.)

MEMORANDUM DECISION AND ORDER - 12

stated he had voted to confirm the termination “based on the reasons given by Mr.
Drabinski.” (Dkt. 11-6.) Ms. Witte and Mr. Swanson stated the reason for their votes was
“because I believed that it was in the best interests of the City to have a change of leadership
in the McCall Police Department.” (Dkt. 11-9, 11-10.)
In his deposition, Mr. Drabinski testified that he did not know about Mr. Summers’
investigation into the Valley County Sheriff’s Office until Mr. Summers told him about it and
that the investigation had “all happened before he got there.” (Dkt. 14-1, Drabinski Depo. at
139.) Mr. Drabinski also denied having told Mr. Summers that the investigation limited his
chances for advancement with the City.
When asked to list all of the reasons for his decision to place Mr. Summers on
administrative leave and recommend termination Mr. Drabinski stated:
I lost the will to have him employed, I lost confidence in his ability to the lead
the police department, and it was clear to me that he was lacking the support
he needed within this community to be able to fulfill it, even if he wanted to.
(Dkt. 14-1, Drabinski Depo. at 212.) Mr. Drabinski pointed to the comments made by Mr.
Summers’ subordinates as a basis for stating that Mr. Summers had lost the confidence of
three of the four of his direct subordinates. (Dkt. 14-1, Drabinski Depo. at 212-218.)10 Mr.
Drabinski also discussed comments from other police officers regarding Mr. Summers. (Dkt.
14-1, Drabinski Depo. at 218-221, 234-45.)
Similarly, in his Affidavit Mr. Drabinski states that he viewed the comments on the
evaluation form as negative and in mid-January he “decided it was time to replace” Mr.
10

The Compendium of Comments appeared on the Employee Management Feedback Form. (Dkt. 14-5,
Sivey Depo. at 90.)

MEMORANDUM DECISION AND ORDER - 13

Summers because he failed to acknowledge his role in creating a negative public perception
of the McCall Police Department or work with Mr. Drabinski to improve the perception; he
did not work to improve his relationship with the Valley County Sheriff’s Office; and he had
lost the confidence of the business community as well as his subordinates. (Dkt. 11-3,
Drabinski Aff. at ¶¶ 11-12.) Mr. Drabinski also denied that his decision to discharge Mr.
Summers had anything to do with the Valley County investigation, filing the Notice of Tort
Claim, reporting workplace hostility against Mr. Drabinski, reporting driving violations,
and/or the fact that Mr. Summers had supported an alternative candidate for the City
Manager position. (Dkt. 11-3, Drabinski Aff. at ¶ 16.)
Laura Scott testified in her deposition that the “crux” of the City Council’s discussion
regarding Mr. Drabinski’s decision to terminate Mr. Summers was whether the two could
work together going forward and the general consensus of the City Council was that it was
not possible for the two to have an effective working relationship. (Dkt. 14-2, Scott Depo.
at 42-43.) Ms. Scott stated that the City Council also discussed other items in deciding
whether to approve Mr. Summers’ termination but the decision seemed to come back to
whether Mr. Summers was the right person for the job. (Dkt. 14-2, Scott Depo. at 50-54.)
Based on the foregoing, the Court finds that the Defendants have provided evidence
that the reason for the discharge was Mr. Summers’ inability to work with Mr. Drabinski and
the need for new leadership at the police department. This evidence is contained in the
Affidavits of the City Council members as well as Mr. Drabinski’s own deposition testimony
and Affidavit noted above. The Court finds this basis for termination to be a legitimate nonMEMORANDUM DECISION AND ORDER - 14

retaliatory reason for termination. Thus, the burden shifts back to Mr. Summers to prove by
a preponderance of the evidence that the reason advanced by the Defendants was a pretext
for retaliatory conduct. The Court finds Mr. Summer has not met his burden on this claim.
Pretext can be shown “either directly by 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.” Dawson v. Entek Intern., 630 F.3d 928, 935
(9th Cir. 2011) (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008)). Only
a small amount of direct evidence is needed to defeat summary judgment. See Knight v.
Brown, 797 F.Supp.2d 1107, 1131 (W.D. Wash. 2011) (citing Coghlan v. Am. Seafoods Co.,
413 F.3d 1090, 1095 (9th Cir. 2005)). Where the evidence is circumstantial, the employee
must provide enough evidence to create a genuine issue of material fact. Dawson, 630 F.3d
at 936. In considering whether Mr. Summers has shown pretext, the Court has viewed the
evidence in the light most favorable to Mr. Summers.
As to any direct evidence of pretext, Mr. Summers has made claims of retaliation in
this case. Those claims, however, are not made with regard to the Valley County
investigation. The retaliation comments arose with regard to reports of hostile work
environment and driving violations made against Mr. Drabinski. Thus, there is no direct
evidence of retaliation relating to the Valley County investigation.
As to circumstantial evidence, Mr. Summers has pointed out that in his approximately
fifteen years with the McCall police department he had always received good evaluations.
(Dkt. 15, Summers Aff. at ¶¶ 3-20.) After Mr. Drabinski was appointed interim and then
MEMORANDUM DECISION AND ORDER - 15

permanent City Manager, Mr. Summers received poor performance reviews and a letter of
discipline in his personnel file. (Dkt. 15, Summers Aff. at 76.) Mr. Summers further alleges
that Mr. Drabinski used his decision to hire an officer who had ran against the Valley County
Sheriff as a basis for putting “bad paperwork” in his personnel file was pretext. (Dkt. 15,
Summers Aff. at 79-82.) Having reviewed the record and drawing all reasonable inferences
in favor of Mr. Summers, the Court finds Mr. Summers has not shown evidence of pretext.
The evidence Mr. Summers points to shows that Mr. Drabinski and Mr. Summers
disagreed on matters relating to the McCall Police Department – in particular the survey
results, Mr. Summers’ execution of his duties, and the public and department’s view of Mr.
Summers as chief. Each of the City Council Members testified in their depositions that the
decision to approve the termination of Mr. Summers was made in large part because of the
disagreements between the two which the Court has determined above was a legitimate basis
for termination. Further, the Valley County investigation occurred approximately eight
months prior to Mr. Drabinski being appointed as interim City Manager and approximately
a year before any negative documents were placed in Mr. Summers’ personnel file. Thus, the
investigation and the alleged retaliation by Mr. Drabinski were not closely related in time.
Based on the foregoing, the Court finds Mr. Summers has failed to show that a
genuine issue of material fact exists as to whether the purported reason for the adverse
employment actions was pretext for the Defendants’ retaliation against Mr. Summers because
of the Valley County investigation. Accordingly, the Court will grant the Motion for
Summary Judgment on this claim.
MEMORANDUM DECISION AND ORDER - 16

2.

Notice of Tort Claim Filed Against Valley County

On October 9, 2012, Mr. Summers filed a Notice of Tort Claim against Valley County
alleging libel and slander. (Dkt. 17-1, Ex. A.) The tort allegations appear to be related to Mr.
Summers’ investigation of the Valley County Sheriff’s Office. (Dkt. 15, Summers Aff. at
¶ 61.) Mr. Summers states that he filed the Notice only to preserve his right to take legal
action in the future against Valley County. (Dkt. 13 at 6); (Dkt. 15, Summers Aff. at ¶¶ 6061.) Mr. Summers claims that he was retaliated against and/or fired by the City for having
filed the tort claim in violation of the IPPEA. (Dkt. 1 at ¶¶ 57-59, 101-06.)
Filing the Notice of Tort Claim, Defendants argue, is not a protected activity under
the IPPEA because it seeks compensation for a personal, not public, wrong. (Dkt. 11 at 9.)
Moreover, Defendants contend that the filing of the Notice had no bearing on the decision
to discharge Mr. Summers. (Dkt. 11 at 10.) The Defendants argue the issue was instead Mr.
Summers’ failure to inform Mr. Drabinski that he had filed the Notice; not the filing of the
Notice itself. (Dkt. 11 at 4) (Dkt. 11, Drabinski Aff. at ¶ 8.) Mr. Summers counters that his
filing of the tort claim was a private action of which he was not required to notify Mr.
Drabinski. (Dkt. 13 at 5.) Further, Mr. Summers maintains his filing of the tort claim was a
protected activity under the IPPEA because it put Valley County on notice of his allegation
that its Sheriff’s Office had committed the crime of libel against him. (Dkt. 13 at 5-6.)
The Court concludes that Mr. Summers’ filing of a Notice of Tort Claim against
Valley County was not a protected activity under the IPPEA. Protected activities are
described in the IPPEA as:
MEMORANDUM DECISION AND ORDER - 17

(1)(a) An employer may not take adverse action against an employee because
the employee, or a person authorized to act on behalf of the employee,
communicates in good faith the existence of any waste of public funds,
property or manpower, or a violation or suspected violation of a law, rule or
regulation adopted under the law of this state, a political subdivision of this
state or the United States. Such communication shall be made at a time and in
a manner which gives the employer reasonable opportunity to correct the waste
or violation.
Van, 212 P.3d at 988 (quoting Idaho Code § 6–2104). “Protected activities include: (1)
opposing an unlawful employment practice; and (2) participating in a statutorily authorized
proceeding.” Patterson, 256 P.3d at 726 (quoting federal EEOC case of a retaliation claim)
(citation omitted). A protected activity may arise in several forms such as: “(1) reporting
safety violations that potentially violate federal regulations; (2) documenting a waste of
public funds and manpower; and (3) communicating a mayor's potential conflict of interest
with an employee health plan that could potentially waste public resources.” Black v. Idaho
State Police, 314 P.3d 625, 628 n. 3 (Idaho 2013) (citations omitted).
Any private tort action for libel Mr. Summers may raise against Valley County does
not raise the kind of public concerns that the IPPEA contemplates. Patterson, 256 P.3d at 724
(The IPPEA is intended to protect public wrongs – the IPPEA "seeks to protect the integrity
of the government 'by providing a legal cause of action for public employees who experience
adverse action from their employer as a result of reporting waste and violations of a law, rule
or regulation.'"). Instead, Mr. Summers’ tort claim for libel seeks personal vindication for
actions by Valley County. Libel is defined in Idaho’s criminal code as “a malicious
defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending

MEMORANDUM DECISION AND ORDER - 18

to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or
reputation, or publish the natural or alleged defects, of one who is alive, and thereby to
expose him to public hatred, contempt or ridicule.” Idaho Code 18-4801; see also Black’s
Law Dictionary, 9th Ed., at 999 (defining libel as a “defamatory statement expressed in a
fixed medium....”). “In a defamation action, a plaintiff must prove that the defendant: (1)
communicated information concerning the plaintiff to others; (2) that the information was
defamatory; and (3) that the plaintiff was damaged because of the communication.” Hopper
v. Swinnerton, 317 P.3d 698, 708 (Idaho 2013) (citation omitted). Thus, the tort claim by Mr.
Summers seeks a remedy for the harm to his own reputation. While Mr. Summers’ tort claim
may relate to the actions of a public entity in response to his investigation, the fact remains
that his tort claim does not implicate a matter of public concern. Accordingly, the Court finds
the filing of the tort claim was not a protected activity as contemplated by the IPPEA.
Alternatively, had Mr. Summers shown the elements of his IPPEA claim, the Court
finds the Defendants have pointed to evidence showing a non-retaliatory reason for Mr.
Summers’ discharge. Specifically, that the reason for the discharge was not the filing of the
tort claim itself but, instead, the fact that Mr. Summers did not notify Mr. Drabinski that he
was filing the action. Mr. Drabinski stated in his deposition the issue concerning the Notice
was that Mr. Summers needed to inform Mr. Drabinski of his having filed the tort action
against the County because, as the City Manager, Mr. Drabinski needed to manage the
relationship between the City, the County, and the City Council as well as manage how the
City is portrayed in the media. (Dkt. 14-1, Drabinski Depo. at 224.) He testified that his
MEMORANDUM DECISION AND ORDER - 19

concerns regarding the tort claim had nothing to do with whether the claim was filed but,
instead, Mr. Summers’ failure to inform Mr. Drabinski of the fact that he had filed which
interfered with Mr. Drabinski’s ability to do his job as City Manager. (Dkt. 14-1, Drabinski
Depo. at 225.) Ms. Sivey similarly testified in her deposition that Mr. Drabinski drafted a
letter of reprimand to be put in Mr. Summers’ file stating that Mr. Summers had failed to
follow Mr. Drabinski’s instructions on keeping him informed of things that might affect his
job as City Manager, such as his filing of a suit or tort claim. (Dkt. 14-5, Sivey Depo. at 5960.) Mr. Drabinski’s Affidavit makes the same statement. (Dkt. 11-3, Drabinski Aff. at ¶ 3.)
Regardless of whether or not Mr. Summers was required to tell Mr. Drabinski, the fact
that he did not inform Mr. Drabinski also supports the Defendants’ position that Mr.
Summers was terminated because he and Mr. Drabinski were unable to effectively work
together and/or communicate, not because Mr. Summers filed the Notice of Tort Claim. As
determined above, this is a legitimate non-retaliatory reason for the discharge. Mr. Summers
has not pointed to evidence raising a genuine issue of material fact as to pretext as to this
claim. Accordingly, the Court will grant summary judgment on this claim.
3.

Reporting Workplace Hostility by Mr. Drabinski

Mr. Summers’ third claim for relief alleges that he was engaged in a protected activity
when he reported Mr. Drabinski’s workplace hostility and aggressive physical and
intimidating behavior towards himself to the City’s Human Resources Manager. (Dkt. 1 at
¶¶ 108-09.) The Defendants took adverse action against him, Mr. Summers’ claims, by
terminating his employment which was causally connected to his reports. (Dkt. 1 at ¶¶ 110MEMORANDUM DECISION AND ORDER - 20

11.) Defendants respond that the reporting of workplace hostility and aggression is not a
protected activity under IPPEA and, further, that the report had no bearing on the decision
to terminate Mr. Summers. (Dkt. 11 at 10.) Mr. Summers counters that the reports concerned
conduct meeting the definition of the crime of assault and, therefore, making such a report
is a protected activity – i.e. reporting a violation of law. See Idaho Code § 6-2104. Further,
Mr. Summers argues his termination was causally connected to the protected activity as
evidence by Mr. Drabinski’s statements that he was going to fire Mr. Summers because of
his efforts to keep Mr. Drabinski from becoming the permanent City Manager. (Dkt. 13 at
7-8.)
The primary event giving rise to Mr. Summers’ report of workplace
hostility/aggression occurred during a September 2012 meeting at the police department
where the results of the City’s survey were presented. Mr. Summers has provided the
depositions of several individuals who were present at the meeting and described Mr.
Drabinski’s actions towards Mr. Summers as “angry” with “fists clenched,” “slightly
aggressive,” and “hostile.” (Dkt. 13 at 6-7 citing Depos. Sandy Ryska, Brian Holbrook, Larry
Stokes, Brian Koch.) Some of these individuals testified that Mr. Drabinski took an
aggressive stance and moved forward towards Mr. Summers during the meeting.11 Although
11
Sandy Ryska testified from her written statement that the September meeting Mr. Drabinski became
angry and took two steps towards Mr. Summers, took a boxer stance, and began yelling at him with his fists
clenched. (Dkt. 14-4, Ryska Depo. at 18.) Ms. Ryska sent her written statement to the City’s Human Resources
Manager, Barbara Sivey, as a formal complaint against Mr. Drabinski. (Dkt. 14-4, Ryska Depo. at 22-23, 38-39, and
Ex. 3.)
Brian Holbrook testified in his deposition that at the September 2012 meeting Mr. Drabinski had an
“outburst directed directly toward Chief Summers” which he describes as Mr. Drabinski blowing up, yelling,
advancing and pointing fingers at Mr. Summers, and getting red in the face. (Dkt. 14-6, Holbrook Depo. at 16-18
and Ex. 8.) Mr. Holbrook did not, however, fear there would be an altercation. (Dkt. 14-6, Holbrook Depo. at 19-

MEMORANDUM DECISION AND ORDER - 21

some who were present stated they did not believe the two would get physical, Mr.
Drabinski’s conduct was such that two of the individuals as well as Mr. Summers himself
reported the incident to the City’s Human Resources Department.12
Mr. Drabinski’s Affidavit couches the events at the September 19, 2012 police
department meeting as one example of Mr. Summers’ undercutting and obstructionist
behavior – i.e. Mr. Summers’ failure to “get on the bus” with Mr. Drabinski and the changes
the Police Department needed to make. (Dkt. 11-3, Drabinski Aff. at ¶ 19.) Mr. Drabinski
testified that Mr. Summers “pushed against the results [of the survey] and pushed against the
need to move forward.” (Dkt. 14-1, Drabinski Depo. at 151.) Mr. Drabinski stated that he did
not get “aggressive” but, instead, that he “got assertive” with Mr. Summers stating “[t]here’s
only going to be one leader here and that was me.” (Dkt. 14-1, Drabinski Depo. at 152.) Mr.
Drabinski denied having his fists in a ball, squaring off, getting angry, and losing his temper
at the meeting.
Barbara Sivey, the City’s Human Resources Manager, confirmed that Mr. Summers,
Mr. Holbrook, and Ms. Ryska had all spoken to her regarding Mr. Drabinski’s conduct at the
September 2012 meeting. (Dkt. 14-5, Sivey Depo. at 24-25.) Ms. Sivey considered these
20.) Mr. Holbrook also testified that he had reported workplace harassment by Mr. Drabinski towards himself the
City’s Human Resources Department. (Dkt. 14-6, Holbrook Depo. at 32.)
Detective Brian Koch testified that at the September 2012 meeting Mr. Drabinski was upset and “kind of
jumped up and went towards [Mr. Summers].” (Dkt. 14-7, Koch Depo. at 9-13.)
Larry Stokes testified that Mr. Drabinski’s general demeanor towards Mr. Summers was “slightly
aggressive” or “hostile.” (Dkt. 14-8, Stokes Depo. at 14.) Mr. Stokes observed Mr. Drabinski take an “aggressive
stance” meaning his fists were balled up and he was leaning forward and speaking in a raised voice directly to Mr.
Summers and other members of the department. (Dkt. 14-8, Stokes Depo. at 15-16.)
12
Peter Rittenger stated at his deposition that he was present at the September 2012 meeting and observed
Mr. Drabinski and Mr. Summers were both frustrated and disagreed regarding the topic of the meeting. (Dkt. 14-3,
Rittenger Depo. at 13.) He denied that Mr. Drabinski was going to get physical with Mr. Summers. (Dkt. 14-3,
Rittenger Depo. at 16.)

MEMORANDUM DECISION AND ORDER - 22

reports to be formal complaints. (Dkt. 14-5, Sivey Depo. at 63-65.) In reaction to the
comments, Ms. Sivey met with Mr. Drabinski who stated that he raised his voice to Mr.
Summers at the meeting in order to be heard. (Dkt. 14-5, Sivey Depo. at 26.) Ms. Sivey also
testified that Mr. Summers talked to her at other times about Mr. Drabinski indicating the two
did not agree but that Mr. Summers did not ask her to do anything and did not mention
“retaliation” until he made his presentation to the City Council in February of 2013. (Dkt.
14-5, Sivey Depo. at 57-58.) Laura Scott’s deposition testimony reflects that the City Council
was aware of Mr. Summer’s claims of retaliation against Mr. Drabinski and noted that no
formal investigation had been done. (Dkt. 14-2, Scott Depo. at 39.)
Based on the foregoing, the Court finds Mr. Summers’ report of the hostile conduct
by Mr. Drabinski was a protected activity. The Idaho Supreme Court has interpreted the
IPPEA’s provisions broadly when considering what constitutes a protected activity. See
Curlee, 224 P.3d at 465-67. Mr. Summers’ report to the City concerned the conduct of its
interim City Manager that many who were present described as hostile and/or aggressive. As
such, the report communicates the existence of a violation or suspected violation of a law,
rule, or regulation. See Idaho Code § 6-2104(1)(a). Further, given the timing and the
circumstances between the protected activity and Mr. Summers’ termination, the Court finds
a genuine issue of material fact has been shown that the termination may have been causally
connected to the protected activity.
As stated above, the Court has found that Defendants have shown a legitimate nonretaliatory basis for the adverse action. Thus, the burden shifts back to Mr. Summers to show
MEMORANDUM DECISION AND ORDER - 23

pretext. Here, the Court finds that Mr. Summers has pointed to evidence giving rise to a
genuine issue of material fact that his termination may have been pretextual. In particular,
the deposition testimony of Mr. Summers and others who were present at the September
2012 meeting that expressed their concerns of retaliation by Mr. Drabinski. (Dkt. 14-4, 14-6,
14-7.) In relation to the hostile workplace reports, Ms. Ryska stated in her deposition that Mr.
Drabinski had told her that he was going to fire Mr. Summers because he was trying to keep
him from becoming the city manager and Mr. Koch’s testimony that Mr. Drabinski had stated
there was a “conspiracy in the police department to keep him from becoming the city
manager.” (Dkt. 14-4, Ryska Depo.) (Dkt. 14-7, Koch Depo. at 21.) Because Mr. Summers
has pointed to evidence giving rise to a genuine issue of material fact, the Court denies the
Motion for Summary Judgment as to this claim. In reaching this conclusion, the Court makes
no findings as to whether either side will prevail at trial on their respective arguments on this
claim.
4.

Reporting Mr. Drabinski’s Driving Violations

In the fourth claim for relief, Mr. Summers alleges he engaged in a protected activity
by reporting to the City’s Human Resources Manager and City Council that Mr. Drabinski
was driving in violation of Idaho law. (Dkt. 1 at ¶¶ 115-16.) The Defendants took adverse
action against Mr. Summers, he claims, by terminating his employment which was causally
connected to the protected activity. (Dkt. 1 at ¶¶ 118-119.) In response, Defendants agree that
Mr. Summers’ reports of Mr. Drabinski’s driving violations were protected activities but
argue the reports had “no bearing” on the decision to discharge Mr. Summers. (Dkt. 11 at
MEMORANDUM DECISION AND ORDER - 24

10.) Mr. Summers points to statements made by Ms. Ryska and Mr. Koch to establish the
causal connection between his reports and his termination. (Dkt. 13 at 8.) In particular, that
Mr. Summers’ report was perceived as an attempt to prevent Mr. Drabinski from being
appointed as the permanent City Manager.
The Court finds Mr. Summers has provided evidence that his termination may have
been causally connected to the reports of Mr. Drabinski’s driving violations. The reports of
driving violations were made in September and October of 2012, just prior to Mr. Drabinski
being appointed to the permanent City Manager position. The deposition testimony of Mr.
Koch and Ms. Ryska give rise to a genuine issue of material fact that Mr. Summers’
termination may have been caused by the driving violation reports.
Again, the Court has determined above that the Defendants have shown a nonretaliatory reason for terminating Mr. Summers. Thus, the burden shifts to Mr. Summers to
show pretext. On this claim, the Court finds that Mr. Summers has pointed to evidence
which, if true could show that the basis for his termination was pretextual.
Mr. Koch stated that he observed Mr. Drabinski driving twice while his license was
revoked and reported both instances to Mr. Summers. (Dkt. 14-7, Koch Depo. at 14-15.) Mr.
Koch testified that he believed Mr. Summers had been suspended, at least in part, because
of the driving license issue and he too feared retaliation from Mr. Drabinski for having
reported the driving violation. (Dkt. 14-7, Koch Depo. at 18-23.) Ms. Ryska testified that Mr.
Drabinski had told her that he was going to fire Mr. Summers because he was trying to keep
him from becoming the city manager. (Dkt. 14-4, Ryska Depo.) Similarly, Mr. Koch sent an
MEMORANDUM DECISION AND ORDER - 25

email to Mr. Summer stating that Mr. Drabinski had said there was a “conspiracy in the
police department to keep him from becoming the city manager.” (Dkt. 14-7, Koch Depo.
at 21.)13
Based on the foregoing, the Court finds genuine issues of material fact exist as to this
claim and, therefore, the Motion for Summary Judgment is denied.
B.

Section 1983 claims

Section 1983 provides a cause of action for violations of a plaintiff’s constitutional
or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580
F.3d 1087, 1092 (9th Cir. 2009). “The purpose of § 1983 is to deter state actors from using
the badge of their authority to deprive individuals of their federally guaranteed rights.”
Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (citation omitted). To prevail on
the § 1983 claims, Mr. Summers must show that (1) acts by the Defendants, (2) under color
of state law, (3) deprived him of federal rights, privileges or immunities, and (4) causing
damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163–64 (9th Cir. 2005) (quoting
Shoshone–Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir.
1994)).
1.

Deprivation of Property Interest - Due Process

The Fourteenth Amendment to the United States Constitution protects individuals
from the deprivation of liberty or property by the government without due process. A § 1983
claim based upon procedural due process contains three elements: (1) a liberty or property
13

This email is dated February 1, 2013. (Dkt. 14, Ex. 11.) In Mr. Koch’s deposition testimony taken on
December 30, 2013 he stated he did not recall sending the email to Mr. Summers. (Dkt. 14-7, Koch Depo. at 21.)

MEMORANDUM DECISION AND ORDER - 26

interest protected by the United States Constitution; (2) a deprivation of that interest by the
government; and (3) a denial of adequate procedural protections. See Portman v. County of
Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). To state a claim under the Due Process
Clause, Mr. Summers must first establish that he possessed a constitutionally protected
property interest. See Brewster v. Board of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d
971, 982 (9th Cir. 1998). Where a property interest exists, due process requires notice and
an opportunity to respond. See Cleveland Bd. of Educ. v. Loundermill et al., 470 U.S. 532,
546 (1985). The Due Process Clause does not itself create substantive property rights;
property rights are defined instead by reference to state law. See Portman, 995 F.2d at 904.
The sixth claim for relief alleges the Defendants violated Mr. Summers’ Fourteenth
Amendment rights by depriving him of a property interest – his reasonable expectation in
continued employment – without due process of law and his termination was contrary to the
conditions of his employment with the City. (Dkt. 1 at ¶¶ 133-140.) Defendants argue that
Mr. Summers was an at-will employee and, as such, he did not have a federally protected
property interest in continued employment. (Dkt. 11 at 11.) Mr. Summers maintains that his
property interest arises from either the implied covenant of good faith and fair dealing and/or
the public policy exception to the employment at-will relationship. (Dkt. 13 at 8-10).
“To have a property interest in a benefit, a person clearly must have more than an
abstract need or desire for it...more than a unilateral expectation of it. [The person] must,
instead, have a legitimate claim of entitlement to it.” Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 577 (1972); see also Sonoda v. Cabrera, 255 F.3d 1035, 1040 (9th Cir.
MEMORANDUM DECISION AND ORDER - 27

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). “Under Idaho law, unless
an employee is hired pursuant to a contract which specifies the duration of the employment,
or limits the reasons why the employee may be discharged, the employee is at will.” Venable
v. Internet Auto Rent & Sales, Inc., 329 P.3d 356, 360 (Idaho 2014) (quotation marks and
citations omitted). “An at-will employee may be terminated by his or her ‘employer at any
time for any reason without creating liability.’” Id. (quoting Edmondson v. Shearer Lumber
Products, 75 P.3d 733, 737 (Idaho 2003)).
At-will employment “is not, however, an absolute bar to a claim of wrongful
discharge.” Venable, 329 P.3d at 361 (citation omitted). Idaho recognizes “a narrow
exception to the at-will employment presumption where the employer's motivation for the
termination contravenes public policy.” Id. (quoting Bollinger v. Fall River Rural Elec.
Co-op., Inc., 272 P.3d 1263, 1271 (Idaho 2012)). “A termination contravenes public policy
‘only where an 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 and privileges.’” Id. In such instances, the
employee has a claim for wrongful discharge.
The parties appear to agree that Mr. Summers’ employment was at-will. The dispute
here is over whether either Idaho’s public policy exception or the implied covenant give rise
to a property interest. The Court finds neither basis gives rise to a property interest here.
MEMORANDUM DECISION AND ORDER - 28

Mr. Summers argues the public policy exception applies based on his IPPEA claims
of unlawful retaliation as well as the implied covenant. (Dkt. 13 at 9.) The Defendants
counter arguing that the public policy exception does not give rise to a protected property
interest in this case. (Dkt. 17 at 5.) Several cases from other districts have rejected Mr.
Summers’ argument in this regard. See Harrison v. Owens, No. 8:11-2215-MGL, 2014 WL
3101266, at *7 (D.S.C. 2014); Bennett v. Watters, 260 F.3d 925, 929 (8th Cir. 2001);
Campbell v. Purtle, 184 F.3d 991, 993 n. 3 (8th Cir. 1999) (citing cases); Reitz v. Persing,
831 F.Supp. 410, 414-15 (M.D.Pa. 1993). This Court has reviewed these decisions and is in
agreement with their reasoning and conclusions that the public policy exception does not give
rise to a protected property interest in continued employment in this case.
Likewise, the implied covenant is not the source of a protected property interest. The
implied covenant of good faith and fair dealing applies to at-will employment and affords an
employee the right to be dealt with fairly and in good faith. See Cantwell v. City of Boise, 191
P.3d 205, 213-14 (Idaho 2008). Breach of the covenant may give rise to an action for
wrongful termination but it does not convert at-will employment to term employment nor
form the basis for a protected property interest. See Hollister v. Forsythe, 22 F.3d 950, 95252 (9th Cir. 1994) (holding an implied covenant of good faith and fair dealing was
insufficient to create a property interest in continued employment under Montana’s statutory
scheme for at will employment); Willnerd v. Sybase, Inc., No. 1:09-cv-500-BLW, 2011 WL
2710085, at *3-5 (D. Idaho 2011) (the implied covenant does not alter the employee’s at will
employment status). Because Mr. Summers has not shown a property interest, the Court will
MEMORANDUM DECISION AND ORDER - 29

grant the Motion for Summary Judgment as to this claim.
Alternatively, if a protected property interest were found to exist, the Defendants
argue that Mr. Summers was provided due process. (Dkt. 11 at 12.) Mr. Summers contends
that the process afforded to him was a “sham” because the City failed to investigate his
claims of unlawful retaliation before “rubber stamping” his termination. (Dkt. 13 at 10-11.)
“When a state has conferred a property interest in employment, the Due Process
Clause prevents the deprivation of such an interest without appropriate procedural
safeguards, including notice and an opportunity to be heard.” Cantwell, 191 P.3d at 214
(citations omitted). “Due process requires that, prior to termination, an employee must be
given (a) oral or written notice of the reason(s) for the termination, (b) an explanation of the
employer's evidence, and (c) an opportunity to present his or her side of the story. There does
not need to be a full-blown evidentiary hearing prior to the termination, so long as one may
be had after the termination.” Id.
In this case, it is undisputed that the City provided Mr. Summers with a written notice
of the proposed action, written notice of the specific reasons for the proposed action, and an
opportunity to be heard. Mr. Summers was allowed to rebut the reasons for the proposed
action and present his position at the February 21, 2013 City Council session. The City
Council then discussed whether to approve the proposed action and terminate Mr. Summers
in three separate sessions. The Court finds the City’s procedure used here satisfies due
process in this case. Mr. Summers’ argument that the City should have done more to
investigate his claims of retaliation shows that he disagrees with the process and outcome but
MEMORANDUM DECISION AND ORDER - 30

it does not show that the City failed to satisfy the essential due process demands of notice and
an opportunity to be heard. The Court finds the requirements of due process were met here
and summary judgment is granted on this claim.
2.

Deprivation of Liberty Interest

The eighth claim for relief alleges the Defendants infringed upon Mr. Summers’
liberty interests in his good name and reputation and in continued and future employment
when they terminated him and made false allegations of unsatisfactory job performance.
(Dkt. 1 at ¶¶ 149-155.) As a result of the false allegations of unsatisfactory job performance
in his personnel file, Mr. Summers’ contends a stigma has been placed on his professional
reputation and his future employment opportunities within his chosen profession have been
adversely impacted and/or foreclosed. Mr. Summers claims he has been forced to retire from
his chosen profession as police chief at the age of 54 and seek employment in a new field
outside of law enforcement where he had worked for nearly 16 years.
The Fourteenth Amendment guarantees individuals the right to procedural due process
when “a constitutionally protected property or liberty interest is at stake.” King v. Garfield
Cnty. Public Hospital, Dist. No. 1, 17 F.Supp.3d 1060, 1076 (E.D. Wash. 2014). “The
government may not deprive a person of the freedom ‘to engage in any of the common
occupations of life’ without due process.” Minshew v. Donley, 911 F.Supp.2d 1043, 1064 (D.
Nev. 2012) (quoting Board of Regents, 408 U.S. at 572–73). “A ‘public employer can violate
an employee's rights by terminating the employee if in so doing, the employer makes a
charge ‘that might seriously damage [the terminated employee's] standing and associations
MEMORANDUM DECISION AND ORDER - 31

in his community’ or ‘impose[s] on [a terminated employee] a stigma or other disability that
foreclose[s] his freedom to take advantage of other opportunities.’” Blantz v. California Dept.
of Rehabilitation and Corrections, 727 F.3d 917, 925 n. 6 (9th Cir. 2013) (quoting Tibbetts
v. Kulongoski, 567 F.3d 529, 536 (9th Cir. 2009) (alterations in original) (quoting Board of
Regents, 408 U.S. at 573)). Due process protections are required where the state seeks to
forever bar “an individual from public employment, makes a charge of ‘dishonesty,’ or
attaches a ‘stigma’ to an employment decision....” King, 17 F.Supp.3d at 1076 (quoting
Board of Regents, 408 U.S. at 564).
“To establish a due process violation, a plaintiff must show (1) the government
publicly disclosed a stigmatizing statement during the course of terminating the plaintiff or
altering some other right or status recognized by state law, (2) the plaintiff contests the
accuracy of that statement, and (3) the government's denial of some other interest, such as
discharge from employment or alteration or extinguishment of some other legal right or
status.” Minshew, 911 F.Supp.2d at 1064 (citing Paul v. Davis, 424 U.S. 693, 701 (1976)).
Defendants argue this claim fails because Mr. Summers has not established that his
future employment is foreclosed, the materials placed in his personnel file do not amount to
a publication, several of the allegations do not involve public disclosure by the Defendants,
and the allegations were not stigmatizing and/or false. (Dkt. 17 at 6-8.) Alternatively, the
Defendants argue that even if a liberty interest is found, Mr. Summers was afforded his right
to due process. (Dkt. 17 at 8.) Mr. Summers maintains that he has been “completely
foreclosed from employment opportunities as a chief of police” from multiple law
MEMORANDUM DECISION AND ORDER - 32

enforcement jobs, Mr. Drabinski’s false accusations of performance issues and placing those
accusations in Mr. Summers’ personnel file were done deliberately to destroy future
employment opportunities, Mr. Drabinski made public statements falsely alleging poor
performance by Mr. Summers, and the process afforded to Mr. Summers was a “sham.” (Dkt.
13 at 11-16.)
For purposes of this Motion, the Court finds that the second and third elements of the
due process violation are present in this case – Mr. Summer contests the accuracy of the
statements and the City has terminated Mr. Summers. The questions on this Motion then are
whether there is a genuine issue of material fact as to whether the statements/accusations
were stigmatizing and/or false and, if so, whether Mr. Summers was afforded due process.
A.

Stigmatizing Statements

“A statement is sufficiently stigmatizing if the government discloses the plaintiff's
dismissal was for ‘reasons that might seriously damage [the plaintiff's] standing in the
community,’ or if it ‘effectively precludes future work in the individual's chosen
profession.’” Minshew, 911 F.Supp.2d at 1064 (quoting Merritt v. Mackey, 827 F.2d 1368,
1373 (9th Cir. 1987) (quotation and internal citation omitted)). “Accusations of dishonesty
or immorality are sufficiently stigmatizing to implicate a liberty interest, but less severe
accusations must be analyzed on a case-by-case basis, and allegations of mere incompetence
or inability are not sufficient.” Blantz, 727 F.3d at 925. “[M]ere harm to reputation alone is
insufficient to implicate an individual’s liberty interest.” King, 17 F.Supp.3d at 1076 (citation
omitted). “[W]here ... there is no charge of dishonesty or immorality, no serious damage to
MEMORANDUM DECISION AND ORDER - 33

[the plaintiff's] standing and associations in the community can be shown.” Minshew, 911
F.Supp.2d at 1064 (quoting Debose v. U.S. Dep't of Agric., 700 F.2d 1262, 1266 (9th Cir.
1983)). “[C]harges of substandard performance ... do not rise to the level necessary to
infringe a liberty interest, thereby triggering constitutionally mandated procedural due
process protections.” Id. “Additionally, the allegedly stigmatizing statement must not be too
remote in time from the termination.” Id. (citing Campanelli v. Bockrath, 100 F.3d 1476,
1483 (9th Cir.1996)).
Mr. Summers claims the Defendants made untruthful and false accusations against
him concerning performance issues, persistent constitutional violations at the Police
Department, and the results of the survey. (Dkt 13 at 13-14) (Dkt. 15, Summers Aff.)
As to the allegations that the documents placed in his personnel file contained false
information and accusations of performance issues, even if that is the case, because the
allegedly false accusations related to Mr. Summers’ performance they do not give rise to the
kind of stigmatizing allegations that implicate a liberty interest. See Blantz, 727 F.3d at 925
n. 6. The materials contained in his personnel file and accusations made in the Notice of
Proposed Personnel Action that Mr. Summers claims are false concern claims of “poor
performance” and performance based deficiencies. (Dkt. 1 at ¶¶ 86-87), (Dkt. 15, Summers
Aff. at ¶¶ 76-77), and (Dkt. 1 at ¶ 82) (“Mr. Drabinski did in fact allege Mr. Summers was
deficient in his performance in...[the] February 15, 2013, notice of personnel action. The
allegations of Mr. Summers’s deficient performance were false.”); (Dkt. 14-2, Ex. B, Notice
of Proposed Personnel Action.) The Court finds that to the extent the accusations are purely
MEMORANDUM DECISION AND ORDER - 34

performance based claims, and do not implicate dishonesty or immorality, they are not
sufficiently stigmatizing to give rise to a protected liberty interest.
Mr. Summers’ argues at length that Mr. Drabinski was intentionally trying to destroy
his career as a police chief and used false performance allegations as a pretext for retaliation.
(Dkt. 13 at 11-14.) Even if Mr. Drabinski’s subjective intent was retaliation and to terminate
Mr. Summers as police chief, that fact does not turn the accusations made concerning
performance issues into a protected liberty interest. As discussed elsewhere in this Order,
however, Mr. Drabinski’s alleged retaliation may go to show pretext in other contexts.
To the extent the alleged comments concern complaints about and constitutional
violations by the Police Department, Mr. Summers argues these claims are not just
performance issues but are instead fatal to individuals working in law enforcement. (Dkt. 13
at 14.) These allegations include arguments concerning the results of the survey conducted
by Mr. Drabinski wherein the chief complaints about the Police Department were: the City
had too many police officers, the police officers made too many stops, and the police officers
were too aggressive. (Dkt. 13 at 14.)
The Court finds a genuine issue of material fact exists as to whether or not these
allegations implicate dishonesty or immortality such that they were “stigmatizing” so as to
give rise to a protectable liberty interest. Mr. Summers has raised arguments concerning his
search for other chief of police positions which, if true, could be found to show he has been
completely foreclosed from obtaining employment in his chosen profession. During the
survey, Mr. Summers alleges that Mr. Drabinski repeatedly and publicly solicited negative
MEMORANDUM DECISION AND ORDER - 35

complaints without regard for whether the complaints had been properly investigated,
addressed, or were well founded. (Dkt. 15, Summers Aff. at ¶¶ 50-56.) Mr. Summers
challenges the reliability and accuracy of the survey as well as the comments solicited by Mr.
Drabinski arguing that the majority of the responses were “overwhelmingly positive.” (Dkt.
15, Summers Aff. at ¶ 47.)
While it seems that these accusations could go to Mr. Summers’ performance, the
Court finds that Mr. Summers has, at lease on this Motion, pointed to evidence giving rise
to a genuine issue of material fact as to whether these allegations are sufficiently
stigmatizing. For instance, the accusations made based on the public complaints and/or the
survey could implicate Mr. Summers’ dishonesty and immorality and/or whether the police
department violated the constitution. If this is shown, Mr. Summers may be able to prove the
accusations precluded his future work in law enforcement such that he had a protectable
liberty interest. For that reason, the Court finds a question of fact exists as to whether the
survey and/or complaints about the police department attributed to Mr. Summers were
sufficiently stigmatizing accusations.
B.

Due Process Hearing

“[A] terminated employee has a constitutionally based liberty interest in clearing his
name when stigmatizing information regarding the reasons for the termination is publicly
disclosed.” Cox v. Roskelley, 359 F.3d 1105, 1110 (9th Cir. 2004). “Failure to provide a
‘name-clearing’ hearing in such a circumstance is a violation of the Fourteenth Amendment's
due process clause.” Id. “[W]here a person's good name, reputation, honor, or integrity is at
MEMORANDUM DECISION AND ORDER - 36

stake because of what the government is doing to him, notice and an opportunity to be heard
are essential.” Board of Regents of State Colleges, 408 U.S. at 573 (internal quotation and
citation omitted).
Mr. Summers argues the hearing held with the City Council was a “sham” because he
consistently and persistently notified the City that he was the victim of unlawful retaliation
and the City failed to conduct any investigation into his claims prior to the hearing or his
termination. (Dkt. 13 at 10, 13) (Dkt. 15, Summers Aff. at ¶¶ 83-107.) Additionally, Mr.
Summers claims Mr. Drabinski solicited unreliable negative public comments regarding the
Police Department and then pinned the blame for those complaints on Mr. Summers while
refusing to allow Mr. Summers to publicly address the complaints against the department in
the media. (Dkt. 13 at 13-14.)
As discussed above, the Court finds Mr. Summers was afforded due process when he
was allowed to rebut the reasons for the proposed termination and present his arguments at
the February 21, 2013 hearing before the City Council. Mr. Summers was given written
notice of the proposed employment action and the basis for the proposed action, was
confronted with Mr. Drabinski’s arguments in favor of the proposed action, and allowed to
rebut the claims and present his own arguments to the City Council. See e.g. (Dkt. 1 at ¶ 84)
(“Mr. Summers was given the opportunity to refute the allegations made by Mr. Drabinski,
and in fact did so.”); (Dkt. 15, Summers Aff. at ¶ 117) (“During this hearing I took the
opportunity to rebut every allegation for which any example or basis for my termination was
given.”) Both sides acknowledge that Mr. Summers did not request a name clearing hearing.
MEMORANDUM DECISION AND ORDER - 37

(Dkt. 11 at 16) (Dkt. 13 at 15) (Dkt. 15, Summers Aff. at ¶ 127.) The Court again finds this
process was sufficient to satisfy due process and, therefore, the Motion for Summary
Judgement is granted on this claim.
3.

Deprivation of Property Interest - Free Speech

Mr. Summers’ tenth claim for relief alleges he had a property interest in his
employment and a reasonable expectation in his continued employment with the City. (Dkt.
1 at ¶ 163.) His employment was terminated, Mr. Summers alleges, based on his exercise of
his First Amendment right to engage in political speech as a private citizen on a matter of
public concern. (Dkt. 1 at ¶¶ 165-169.) Specifically, Mr. Summers’ open support for a
candidate other than Mr. Drabinski for appointment to the City Manager position. (Dkt. 1 at
¶¶ 167-169.)
Defendants argue this claim fails under both the due process clause and the First
Amendment because his support of a different candidate had no bearing on the decision to
terminate. (Dkt. 11 at 17.) Additionally, Defendants argue the policymaker exception
precludes his claim because public officials who are “policymakers,” such as Mr. Summers
was as the Police Chief, may be discharged for exercising political speech.
Mr. Summers counters arguing that he was not a policymaker because the City of
McCall utilizes a city manager form of government. (Dkt. 13 at 17.) In this system, the City
Manager is directly responsible to the City Council for the policies of the police department
unless they are delegated to the chief of police, which Mr. Summers claims was not done in
this case. Mr. Summers argues he possessed no authority to make policy or any discretion
MEMORANDUM DECISION AND ORDER - 38

regarding policy. Defendants maintain Mr. Summers was a policymaker because it was
necessary for him to work closely with, support, and have an effective relationship with Mr.
Drabinski in order for Mr. Summers to effectively perform his job. (Dkt. 17 at 9.)
The Court finds a genuine issue of material fact has been shown as to whether Mr.
Summers’ was terminated because of his support for another City Manager candidate. On the
one hand, Mr. Drabinski testified that “it made no difference to me who [Mr. Summers]
supported” for the City Manager position and that given their history he would have expected
Mr. Summers to support Carol Brockman. (Dkt. 14-1 at 192.) On the other hand, Sandy
Ryska testified that Mr. Drabinski had told her in a meeting that “Chief Summers had done
everything in his power to keep him from being hired as city manager, and because of that,
he was going – his intent was is to have him fired.” (Dkt. 14-4, Ryska Depo. at 31, 36.) These
contradictory statements give rise to a genuine issue of material fact as to the basis for Mr.
Summers’ termination.
As to the policymaker exception argument, the First Amendment protects a public
employee from being fired or retaliated against based on his or her political opinions,
memberships, or activities. Hunt v. County of Orange, 672 F.3d 606, 611 (9th Cir. 2012)
(citing Branti v. Finkel, 445 U.S. 507, 515-16 (1980)). The Supreme Court has delineated a
narrow exception to this rule “permitting dismissals on the basis of political beliefs of those
employees in ‘policymaking positions.’” Id. (quoting Elrod v. Burns, 427 U.S. 347, 367
(1976)). This policymaker exception was created so that “representative government not be
undercut by tactics obstructing the implementation of policies of the new administration,
MEMORANDUM DECISION AND ORDER - 39

policies presumably sanctioned by the electorate.” Id. In determining whether one is a
“policymaker” the Court must determine “whether the hiring authority can demonstrate that
party affiliation is an appropriate requirement for the effective performance of the public
office involved.” Id. (quoting Branti, 445 U.S. at 518). In resolving this issue, the Ninth
Circuit has articulated nine nonexclusive factors for courts to consider including: “vague or
broad responsibilities, relative pay, technical competence, power to control others, authority
to speak in the name of policymakers, public perception, influence on programs, contact with
elected officials, and responsiveness to partisan politics and political leaders.” Fazio v. City
and Cnty. of San Francisco, 125 F.3d 1328, 1334 n. 5 (9th Cir. 1997). The Court will take
each factor in turn.
There is no dispute that Mr. Summers was the second highest paid City employee.
This factor weighs in favor of Defendants.
As to Mr. Summers’ responsibilities and duties, this factor is somewhat inconclusive
as the parties dispute the applicable facts. Defendants assert that Mr. Summers’ duties
included: enforcing all laws and regulations, determining whether to seek prosecution for
violations of law, serving as the executive officer over the police department, being
responsible for the conduct and discipline of the officers in the department, representing the
City and the police department in the public, preparing and presenting reports to the City
Manager and City Council, making personnel decisions, consulting with the City Manager
in formulating policies and regulations and implementing City Council directives, and

MEMORANDUM DECISION AND ORDER - 40

preparing and overseeing the department budget. (Dkt. 11 at 18.)14 Defendants further argue
that Mr. Summers’ own Affidavit demonstrates the importance of the need for the Police
Chief and the City Manager to work closely together in order to effectively perform their jobs
as evidence that he was a policy maker. (Dkt. 17 at 9.)
Mr. Summers, however, claims he was not allowed to perform a number of these
duties such as: speaking to the press without permission, organizing the police department,
choosing which staff members occupied supervisor positions, setting the staff schedule,
hiring/firing without approval, representing the City, spending more than $500 without
approval, and delegating tasks. (Dkt. 13 at 17.) Additionally, Mr. Summers states he was not
consulted or allowed to give input on policies and ordered only to implement policies, was
not allowed to drive his personal vehicle to work unless in uniform, and could not determine
the appropriate attire for the Chief of Police position. As to the budget, Mr. Summers claims

14

(A)
(B)
(C)
(D)
(E)

(F)
(G)
(H)
(I)
(J)

In contrast, the City Code lists the City Manager’s powers and duties as applicable here include:
Have general supervision over the business of the city.
See that the ordinances and policies of the city are complied with and faithfully executed.
Attend all meetings of the council at which the city manager's attendance is required by that body.
Recommend for adoption to the council such measures as the city manager may deem necessary or
expedient.
Make the appointment of all department heads, subject to confirmation of such appointment by the council
and such civil service regulations as may relate thereto; provided, however, that the city attorney shall be
excluded from the scope of the city manager's appointment, termination and supervisory authority. The city
attorney shall report directly to council; however the services and facilities of the city attorney shall be
made available to the city manager and, under guidelines of the city manager, to the officers, department
heads and staff of the city as to city business.
Prepare and submit to the council such reports as may be required by that body or as the city manager may
deem advisable.
Keep the council fully advised of the financial condition of the city and its future needs.
Prepare and submit to the council a tentative budget for the next fiscal year.
Perform such other duties as the council may establish by ordinance or resolution.
Terminate a department head's appointment , subject to confirmation of such termination by the council and
such civil service regulations as may relate thereto.

(Dkt. 11-5, Wagner Aff., Ex. B.)

MEMORANDUM DECISION AND ORDER - 41

he prepared the police department’s budget but that it was subject to approval and editing by
the City Manager before being submitted to the City Council for its approval. In reply, the
Defendants maintain that Mr. Summers was a policymaker because it was necessary for him
to support and have a working relationship with Mr. Drabinski in order to effectively run the
police department. (Dkt. 17 at 9.)
In the City’s organizational structure, the Police Chief is a department head
responsible for the City’s police department. (Dkt. 11-5, Wagner Aff. Ex. B.)15 The McCall
City Code describes the duties for the Police Chief as:
The chief of police shall be chief of the police force and all full time or reserve
police officers shall be subordinate to the chief and subject to the chiefs orders.
It shall be the chiefs duty to cause the public peace to be preserved and to see
that all laws and provisions of this code are enforced within the city limits. The
chief, and through the chief, the police department, have the responsibilities
stated in section 5-1-020 of this code. (Ord. 895, 2-9-2012)
(Dkt. 11-5, Wagner Aff. Ex. B.) The City’s job description for the Chief of Police states:
General Statement of Duties
Performs a variety of complex administrative, supervisory, and professional
work in planning and directing the programs and activities of the Police
Department in the enforcement of laws and ordinances and the prevention of
crime and protection of life and property; performs related work as required.
Classification Summary
The principal function of an employee in this class is to serve as executive
officer of the City Police Department with the responsibility of planning and
directing all the functions, activities and operations of the Department. This
position is responsible for the protection of lives and property in the City
through the supervision and direction of all police functions. The work is
performed under the direct supervision of the City Manager, but considerable
latitude is granted for the exercise of independent judgment and initiative.
15

The City’s management structure utilizes ten departments with department heads to administer the
efficient operations of the City’s business. (Dkt. 11-5, Wagner Aff. Ex. B.)

MEMORANDUM DECISION AND ORDER - 42

Direct and indirect supervision is exercised over the work of all police
department employees. The principal duties of this class are performed in both
a general office environment and an outdoor environment that may include
exposure to adverse weather conditions and to potential personal danger.
(Dkt. 11-5, Wagner Aff., Ex. C.) The job description goes on to provide illustrative examples
of essential duties and responsibilities of the Chief of Police that includes several broad
duties ranging from developing and implementing policies and programs, overseeing the
department’s budget, consulting with the City Manager to formulate policies and regulations
and implementing City Council directives governing the activities of the police department,
directing and making personnel decisions, providing leadership, representing the City and
the police department to the public, presenting reports to the City Manager and the City
Council, planing and directing long-range department activities, and ensuring appropriate
department cooperation and coordination with other local, state, and federal law enforcement
agencies. (Dkt. 11-5, Wagner Aff., Ex. C.)16
16

The City’s job description for the Chief of Police lists the following illustrative examples:
developing and implementing objectives, plans, programs, policies, activities, and operations for
the police department; prepares and oversees the police department budget, develops fiscal
responsible strategies; consults with the City Manager in formulating policies and regulations and
implementing City Council directives governing the activities of the police department; directs the
selection, supervision, evaluation, and assignments of Department personnel; provides
leadership and encourages leadership in management and supervisory personnel; represents the
City and Police Department in maintaining liaison with civic, business, community, and
professional organizations; evaluates trends in criminal activities and formulates a department
response; Develops leadership skills in police officers and civilian employees to assist them in
interaction and problem solving efforts with the community; Works with the Administrative staff
of the Department to manage and make decisions on personnel issues, the development of
employees in their positions, as well as the development of supervisors and managers in
supervision and leadership principles and actions; Conducts sensitive investigations into
allegations of official misconduct or violations of law by public officials, employees, or police
officers and conducts or arranges for internal affairs investigations as required; Holds all
employees accountable for their actions and conduct and administers discipline in accordance with
Department and City Employee policies and procedures; Develops policies and procedures to
administer, document, and evaluate the activities of all divisions and bureaus of the Department;
Meets with supervisors on a regular basis to discuss issues of management and Department policy,
and makes changes as necessary; Plans and directs the long-term Police Department

MEMORANDUM DECISION AND ORDER - 43

Based on the foregoing, although a close question, the Court finds these broad and
vague descriptions of the Police Chief’s responsibilities and duties tips slightly in favor of
finding Mr. Summers to have been a policymaker. Even accepting as true Mr. Summers’
allegations that much of his authority was subject to review or approval, the fact remains that
as Police Chief Mr. Summers was in charge of running the City’s police department. Bardzik
v. City of Orange, 635 F.3d 1138, 1147 (9th Cir. 2011) (citing Biggs v. Best, Best & Krieger,
189 F.3d 989, 996 (9th Cir. 1999)). His duties in that position included discussing,
developing, and implementing City policies applicable to the police department. These broad
and general duties included policymaking functions even though he was subject to approval
from the City Manager and City Council. Id.
These same arguments go also to the “most critical factor” in this determination –
influence on programs. See Walker v. City of Lakewood, 272 F.3d 1114, 1133 (9th Cir.
2001). Again accepting as true Mr. Summers’ allegations that he was required to get approval
for many of the duties he was assigned, the record also shows that Mr. Summers took part
in the discussions regarding policies for the City’s police department and was charged with
implementing those policies. Bardzik, 635 F.3d at 1147 (citing Biggs, 189 F.3d 996). In his
administrative, operational, support, public education, and public relations activities; Develops
service related issue plans for forecasting long range police operational and capital improvement
needs and presents reports to City Manager; Develops and manages Department policies,
procedures, directives, and general orders; Prepares and presents periodic reports on Department
activities to the City Manager and City Council; Represents the City and Department at
conferences and meetings to stay current on trends in the law enforcement field and represents the
City at a variety of local, area, state, and other meetings; Ensures appropriate Department
cooperation and coordination with other local, state, and federal law enforcement agencies;
Performs all work duties and activities in accordance with City and Department policies,
procedures and safety practices.
(Dkt. 11-5, Wagner Aff., Ex. C.)

MEMORANDUM DECISION AND ORDER - 44

Affidavit, Mr. Summers states that he was a “driving force in re-establishing the interagency
drug task force for Valley County” and was a prominent player in the Child Abduction
Response Team, a multi-agency team that produced protocols and attended training designed
to work cooperatively with other agencies in a child abduction situation. (Dkt. 15 at 3.)17
Because he had influence on the police department programs and policies, the Court finds
that this factor weighs in favor of finding that Mr. Summers was a policymaker.
The public-perception factor also weighs in the Defendant’s favor. As Police Chief,
Mr. Summers was well known and visible to the public as the leader of the police
department. The job description for the Police Chief position and many of the illustrative
duties evidence that the position is responsible, at least in part, for representing the City and
the police department to the public. Although Mr. Summers maintains that he was not
allowed to speak to the press without permission, the fact that his discretion was somewhat
subject to approval does not negate the fact that his position as Chief of Police was highly
visible and known to the public and his duties included representing the City as the Chief of
Police.
Mr. Summers’ own allegations demonstrate that he had the technical competence to
serve as the Chief of Police. In his Affidavit, Mr. Summers details his length of service with
the police department, from 1997 to 2013, and states he “rose through the ranks” and held
“nearly every sworn position in the McCall Police Department.” (Dkt, 15 at ¶¶ 3-4.) Mr.
Summers goes on to state that his evaluations were always good and he was consistently and
17

The Court notes that these programs occurred prior to Mr. Drabinski becoming the City Manager.
Regardless, they still go to show Mr. Summers’ influence on programs while he was Chief of Police.

MEMORANDUM DECISION AND ORDER - 45

quickly promoted in the department over the years. Upon becoming Police Chief, Mr.
Summers states he took the department “from a dysfunctional and unethical department to
one that was highly functioning and respected,” prior to Mr. Drabinski becoming City
Manager he received positive employee evaluations and raises, improved relations with
surrounding agencies, and was influential in bringing about important programs in the area.
(Dkt. 15 at 3.) Based on Mr. Summers’ own affirmations, the Court finds this factor favors
the Defendants.
The Court also finds Mr. Summers had the power to control others. Although Mr.
Summers argues his discretion regarding certain personnel decisions was subject to approval
from the City Manager, as Police Chief, Mr. Summers was clearly in charge of and
supervised several individuals ranging from police personnel to staff. This factor too favors
the Defendants.
The record here is unclear as to Mr. Summers’ authority to speak in the name of
policymakers. The written duties of the Police Chief include that Mr. Summers represented
the City and Police Department in maintaining liaison with civic, business, community,
and professional organizations. Again, Mr. Summers contends that he was not allowed to
represent the City without approval. (Dkt. 13 at 17.) Whether Mr. Summers was allowed to
represent the City after Mr. Drabinski became City Manager is a genuinely disputed issue
of material fact in this case. As such, the Court finds this factor must be weighed in Mr.
Summers’ favor.

MEMORANDUM DECISION AND ORDER - 46

As to the factor concerning responsiveness to political leaders and partisan politics,
the Court finds this consideration also favors the Defendants. As Police Chief, Mr. Summers
was the department head in charge of implementation of policy and directly accountable to
both the City Manager and the City Council for doing so. Further, the City Council had the
ultimate hiring and firing decision for the position – i.e. the City Manager appoints
department heads and recommends terminations and the City Council confirms appointments
and approves terminations. (Dkt. 11-5, Wagner Aff., Ex. A at 5-7.)
As Chief of Police, Mr. Summers also had frequent and meaningful contact with
elected officials. The duties of this position state that Mr. Summers was required to prepare
and present periodic reports to the City Council and City Manager. The Court acknowledges
that the City Manager is an appointed not an elected official but still finds this factor is
relevant given the City’s structure and that the record is littered with several contacts
between Mr. Summers as Chief of Police and Mr. Drabinski as the City Manager involving
discussions over policy and operations of the police department.18 This factor weighs slightly
in favor of finding Mr. Summers to have been a policymaker.

18

The City’s Personnel Policy Manual describes the City’s organizational structure as follows. (Dkt. 11-5,
Wagner Aff., Ex. A at 5-7.) The City Council are elected public officials who serve as the governing body for the
City and carry out local legislative duties and other obligations as provided by law as well as being the general
policymaker with the authority to establish general policy for the City. The City Manager is appointed by the City
Council and serves as the administrative head of the city government under the direction and supervision of the City
Council. The City Manager has the authority to establish administrative policy and may designate personnel to help
carry out administrative responsibilities, such as the department heads, as well as approve operational
policies/practices for the City. Additionally, the City Manager has the general supervision over the business of the
City and see that the ordinances and policies of the City are complied with and faithfully executed. Department
heads, such as the Police Chief, are persons in charge of a department or other agency of the City government. They
are appointed by the City Manager and confirmed by the City Council and work under the direction of the City
Manager.

MEMORANDUM DECISION AND ORDER - 47

The Court has spent a great deal of time reviewing the record in this case and, having
done so, finds that Mr. Summers was a policymaker. Taking the facts as alleged by Mr.
Summers to be true for purposes of this Motion, the Court concludes that most of the Fizio
factors weigh against Mr. Summer’s position. More importantly, the Court finds that the
Defendants have demonstrated “that party affiliation is an appropriate requirement for the
effective performance of the public office involved.” Hunt, 672 F.3d at 611 (quoting Branti,
445 U.S. at 518). The duties of the Police Chief involve, in large part, implementation of the
policies and directives of the City Council and demand a certain level of allegiance and
affiliation to the City Council as well as the City Manager. The Affidavits of each of the City
Council members reflects that they voted to approve the termination of Mr. Summers
primarily because of his inability to work with Mr. Drabinski in this regard. Likewise, Mr.
Drabinski stated in his deposition that he recommended terminating Mr. Summers because
he did not “get on the bus” to work with Mr. Drabinski and that he instead contradicted Mr.
Drabinski’s goals for the department. Based on the foregoing, the Court finds that Mr.
Summers falls within the policymaker exception allowing patronage dismissals. Accordingly,
the Motion for Summary Judgement is granted on this claim as there was no First
Amendment constitutional violation for Mr. Summers’ dismissal.
C.

Negligent Infliction of Emotional Distress

Mr. Summers’ the twelfth claim for relief raises a claim for negligent infliction of
emotional distress against Mr. Drabinski in his individual capacity. (Dkt. 1 at ¶¶ 183-189.)
The Complaint alleges that Mr. Drabinski had a duty not to cause Mr. Summers unwarranted
MEMORANDUM DECISION AND ORDER - 48

emotional distress by deliberately and unlawfully retaliating against his exercise of his First
Amendment right, reporting unlawful conduct, filing a tort claim, and engaging in a criminal
investigation as part of his official job duties. Mr. Drabinski counters that the claim should
be dismissed because Mr. Summers failed to file a notice of claim as required by the Idaho
Tort Claims Act (“ITCA”). (Dkt. 11 at 19) (Dkt. 17 at 10.)
The ITCA provides for a 180-day notice requirement for informing the government
of the basis for a tort claim. See Idaho Code §§ 6-906, 6-908. Failure to provide such notice
is grounds for dismissal of the claim. See Mitchell v. Bingham Memorial Hospital, 942 P.2d
544, 548–49 (Idaho 1997). The Idaho Supreme Court has held that the filing of a notice of
claim as required by the Tort Claims Act is “a mandatory condition precedent to bringing
suit, the failure of which is fatal to a claim, no matter how legitimate.” Banks v. Univ. of
Idaho, 798 P.2d 452, 453 (Idaho 1990) (quoting McQuillen v. City of Ammon, 747 P.2d 741,
744 (Idaho 1987)). It is undisputed that no notice was filed in this case.
Mr. Summers instead argues the ITCA applies only to tort claims brought against an
employee acting within the scope and course of his employment but the tort claim here is
raised against Mr. Drabinski individually and thus not subject to the ITCA’s notice
requirement. (Dkt. 13 at 19.) Mr. Drabinski maintains the claim falls under the ITCA and a
notice was required. The Court agrees with the defense.
The facts giving rise to the claim are clearly actions and conduct taken by Mr.
Drabinski while he was performing his duties as the City Manager and, thus, were within the
course and scope of his employment and subject to the ITCA notice requirement. See
MEMORANDUM DECISION AND ORDER - 49

Anderson v. Spalding, 50 P.3d 1004, 1013-14 (Idaho 2002). Mr. Summers has not rebutted
the statutory presumption that the claim arises from conduct occurring during Mr.
Drabinski’s employment by merely stating that he is being sued in his “individual capacity.”
Id. Thus, the notice requirement of the ITCA applies here and Mr. Summers’ failure to file
such notice is fatal to his claim.
Mr. Summers also appears to re-couch his claim as one for intentional infliction of
emotional distress, arguing that Mr. Drabinski engaged in malicious and intentional unlawful
retaliation contrary to public policy and, therefore, such actions do not fall within the ITCA.
(Dkt. 13 at 19-20.) To this argument Mr. Drabinski asserts that summary judgment is
appropriate because there is no evidence that his conduct was extreme and outrageous or that
Mr. Summers suffered sever emotional distress. (Dkt. 17 at 10.)
A claim for intentional infliction of emotional distress in Idaho requires the following
elements: (1) that the defendant acted intentionally or recklessly; (2) that the defendant's
conduct was extreme and outrageous; (3) that there was a causal connection between the
defendant's conduct and the plaintiff's emotional distress; and (4) that the plaintiff's emotional
distress was severe. See Hopper v. Swinnerton, 317 P.3d 698, 708 (Idaho 2013); Alderson
v. Bonner, 132 P.3d 1261, 1267 (Idaho Ct.App.2006). “Liability for this intentional tort is
generated only by conduct that is very extreme. The conduct must be not merely
unjustifiable; it must rise to the level of atrocious and beyond all possible bounds of decency,
such that it would cause an average member of the community to believe that it was
outrageous.” Johnson v. McPhee, 210 P.3d 563, 572 (Idaho Ct.App.2009) (citing Edmondson
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v. Shearer Lumber Prods., 75 P.3d 733, 741 (Idaho 2003) (marks omitted)). Mr. Summers
has not alleged facts nor pointed to any evidence giving rise to the extreme and outrageous
type of conduct required for such a claim.
Based on the foregoing, summary judgment is granted on this claim.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED as follows:
1)

Defendants’ Motion for Summary Judgment (Dkt. 11) is GRANTED IN
PART AND DENIED IN PART as stated herein. This matter is currently set
for trial on April 7, 2015. The parties are directed to confer with one another
and submit a joint notice to the Court as whether they desire to proceed to trial
as scheduled on the claims remaining in this action or whether the parties
desire to pursue Alternative Dispute Resolution, Mediation, or Judicially
Supervised Settlement Discussions. Such notice shall be filed on or before
February 23, 2015.

2)

Defendant’s Motion to Strike (Dkt. 18) is GRANTED IN PART AND
DENIED IN PART.
DATED: January 29, 2015

Honorable Edward J. Lodge
U. S. District Judge

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