Garcia v. State of Idaho Department of Health & Welfare

Filing 26

MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT granting 14 MOTION for Summary Judgment. The Clerk is directed to enter judgment in favor of the defendant and against the plaintiff in this action. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

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UNITED STATES DISTRICT COURT

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DISTRICT OF IDAHO

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----oo0oo----

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ORALIA GARCIA,
Plaintiff,

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CIV. NO. 1:13-284 WBS
MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT

v.
STATE OF IDAHO, Department of
Health & Welfare,
Defendant.

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----oo0oo---Plaintiff filed this action against defendant State of

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Idaho Department of Health & Welfare (“Department”), alleging the

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Department discriminated against her because of her race, sex,

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and age in violation of Title VII of the Civil Rights Act of 1964

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(“Title VII”), 42 U.S.C. § 2000e-2(a)(1), the Age Discrimination

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in Employment Act (“ADEA”), 29 U.S.C § 623(a)(1), and the implied

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covenant of good faith and fair dealing.

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court is defendant’s motion for summary judgment pursuant to

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Federal Rule of Civil Procedure 56.
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Presently before the

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I.

Factual and Procedural Background

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Plaintiff, a fifty-six-year-old Hispanic woman, (Compl.

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¶ 2 (Docket No. 1)), was terminated by defendant after thirty-two

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years of employment, (Garcia Aff. ¶ 5 (Docket No. 16-2)).

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the ten years leading up to her termination, plaintiff held the

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position of Electronic Benefit Transfer (“EBT”) Operations

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Supervisor, in which she oversaw the transfer of food, cash, and

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child support benefits.

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participating in the oversight of the Department’s contractual

(Garcia Aff. ¶ 3.)

For

Her duties included

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relationships with financial institutions involved in

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administering such transfers.

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Department never gave plaintiff a formal write-up for poor

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performance or subjected her to any disciplinary action.

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4-5.)

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calendar year, plaintiff’s supervisor Michael Pearson gave her

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the rating of “solid, sustained performance.”

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Aff. Ex. A.)

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(Id.)

Prior to March 2012, the

(Id. ¶¶

In a performance review of plaintiff’s work in the 2011

(Id. ¶ 6; Garcia

Prior to her discharge, plaintiff obtained outside

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employment as a real estate agent.

Because the Department had a

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policy requiring employees to seek its approval before beginning

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outside employment, plaintiff applied for approval and the

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Department granted it.

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plaintiff an information packet containing its policies on

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outside employment, (Pearson Aff. Ex. A), but the parties dispute

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whether plaintiff was specifically instructed not to perform real

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estate work during work hours or that she was prohibited from

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sending personal emails from her work account, (Pearson Aff. ¶

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10; Garcia Aff. ¶ 14.)

(Garcia Aff. ¶ 9.)

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The Department sent

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On March 8, 2012, plaintiff’s supervisor, Michael

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Pearson, and a human resources specialist, Maria Gamet, met with

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plaintiff to address the way plaintiff had handled a contract

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between the Department and JP Morgan.

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the meeting, Pearson directed plaintiff not to disclose or

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otherwise communicate with anyone information regarding the

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review.

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No. 16-1).)1

(Garcia Aff. ¶ 18.)

At

(Gamet Aff. ¶ 5; Pl.’s Statement of Facts ¶ 16 (Docket

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Parties dispute the purpose of the March 8 meeting.

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Gamet and Pearson state they met with plaintiff to understand

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what communications were made between Department employees and JP

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Morgan.

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(Docket No. 14-5).)

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told plaintiff that Paul Spannknebel, the Administrator of the

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Division of Operational Services, (Young Aff. ¶ 4 (Docket No. 14-

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4)), had met with Deputy Director Paul Taylor and expressed his

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concerns about the way plaintiff was handling the contract,

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particularly due to a potential conflict of interest that could

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cause the Department to lose its authority with the Department of

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Purchasing.

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(Gamet Aff. ¶ 4 (Docket No. 14-13); Taylor Aff. ¶ 5
According to plaintiff, Pearson and Gamet

(Id. ¶ 18.)

Plaintiff stated in her deposition that in 2010,
Spannknebel had made several inappropriate sexual advances toward
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In an email to a fellow Department employee Tonia
Walgamott, plaintiff told Walgamott that plaintiff was supposed
to keep the meeting “on the QT.” (Gamet Aff. Ex. J at 541.)
Plaintiff does not dispute that she was instructed not to discuss
the contract review; she states instead that no one specifically
warned her that discussing the review with someone outside the
meeting would lead to discipline. (Garcia Aff. Ex. E (“Garcia
Dep.”) at 60:3-6 (Docket No. 16-7).)
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her, which she rejected.

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alleges these encounters with Spannknebel are connected to her

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discharge.

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(Garcia Dep. at 19:11-34:25.)

She

(Compl. ¶¶ 14-15.)

Following the meeting, Deputy Director Taylor requested

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a review of plaintiff’s email and internet use.

(Taylor Aff. ¶

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5.)

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work account.

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support of its motion, revealed that 1) plaintiff had been

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sending emails relating to her outside real estate business from

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her work account during work hours,2 and 2) she divulged details

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regarding the March 8 meeting to Department employee Tonia

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Walgamott.

Information Technology retrieved emails sent from Garcia’s

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(Id.)

The emails, which defendant attaches in

(Taylor Aff. Ex. A; Gamet Aff. Exs. G-J.)

On March 15, 2012, Gamet and Pearson met with plaintiff

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to discuss her use of her Department email account to perform

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work as a real estate agent and her emails to Walgamott regarding

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the March 8 meeting.

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69:2.)

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believed were disparaging comments plaintiff made in her emails

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regarding other employees.

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(Taylor Aff. ¶ 9; Garcia Dep. at 67:9-

Gamet and Pearson also expressed concern over what they

(Garcia Dep. 68:8-10.)3

On April 12, 2012, Deputy Director Taylor served
plaintiff with a Notice of Contemplated Disciplinary Action.

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Plaintiff concedes she sent personal emails related to
her outside employment as a real estate agent during Department
working hours, but states she did not send them during her work
time. (Garcia Aff. ¶ 15.)
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Plaintiff’s emails reveal she called Pearson a
“micromanager,” (Gamet Aff. Ex. D at DHW0565); accused John
Wheeler of “not doing anything or knowing anything,” (id. at
DHW0564); and described Program Specialist Beverly Berends as
“incompetent,” (id.).
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(Gamet Aff. Ex. D.)

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considering dismissing plaintiff because she demonstrated

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insubordination by speaking with other employees regarding the

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Department’s review of a sensitive matter; used her work computer

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for her outside employment during work hours; sent an excessive

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amount of personal email from her work computer; and failed to

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treat other employees with courtesy, dignity, and respect.

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at 548.)

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further discuss these charges.

(Gamet Aff. ¶ 11.)

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2012, plaintiff was dismissed.

(Taylor Aff. Ex. A at 623.)4

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that time, she was fifty-five years old.

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102:17.)

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contesting the charges against her and alleging that her

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rejection of Spannknebel’s advances were a motive for her

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termination.

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vacant from April 25, 2012 until January 7, 2013, (Young Rebuttal

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Aff. ¶ 2 (Docket No. 17-1)), when the Department replaced

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plaintiff with Alice Porter, a white female in her early

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thirties, (id.; Garcia Aff. ¶ 21).

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According to the notice, the Department was

(Id.

Gamet and Taylor met with plaintiff on April 17 to
On April 25,
At

(Garcia Dep. at

Plaintiff unsuccessfully appealed her termination,

(Young Aff. Ex. A.)

Plaintiff’s position remained

Plaintiff filed this action, alleging that Spannknebel

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blamed the JP Morgan contract problems on plaintiff because she

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rebuffed his sexual advances, (Compl. ¶ 15), and that the

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Department terminated her because of her sex, race, and age,

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whereas it treated other white male employees who engaged in

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In the dismissal letter, the Department stated there
were only two areas where plaintiff’s integrity had come into
question, her sharing of confidential information with a
subordinate and her performance of outside work during regular
work hours. (Taylor Aff. Ex. A at 620.)
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similar conduct with more leniency, (id. ¶ 23).

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move for summary judgment, contending that plaintiff’s

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termination was not a result of discrimination in violation of

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anti-discrimination law or the contractual covenant of good faith

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and fair dealing.

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II.

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(Docket No. 14.)

Discussion

A. Legal Standard

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Defendants now

Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

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P. 56(a).

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of the suit, and a genuine dispute is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the moving party can demonstrate that the non-

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moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Id.

A material fact is one that could affect the outcome

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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Anderson, 477 U.S. at 255.

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weighing of the evidence, and the drawing of legitimate

“Credibility determinations, the

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inferences from the facts are jury functions, not those of a

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judge . . . ruling on a motion for summary judgment . . . .”

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Id.

B. Sex and Racial Discrimination

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Title VII of the Civil Rights Act of 1964 makes it “an

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unlawful employment practice for an employer . . . to

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discriminate against any individual with respect to his

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compensation, terms, conditions, or privileges of employment,

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because of such individual’s race, color, religion, sex, or

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national origin . . . .”

42 U.S.C. § 2000e-2(a)(1).

Plaintiff

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has brought claims under Title VII for discrimination because of

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her race and sex.

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“To proceed to trial, the plaintiff need only raise a

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genuine dispute as to whether [plaintiff’s protected trait] was a

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motivating factor in the challenged decision.”

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v. Nev. Transp. Dep’t, 424 F.3d 1027, 1041 n.7 (9th Cir. 2005).

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A plaintiff may prove a case of discrimination by invoking the

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burden-shifting framework established in McDonnell Douglas Corp.

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v. Green, 411 U.S. 792 (1973), as plaintiff does here.

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this framework, plaintiff must first establish a prima facie case

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showing that 1) she belongs to a protected class of persons; 2)

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she satisfactorily performed her job; 3) she suffered an adverse

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employment action; and 4) her employer treated her differently

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than similarly situated employees not of the same protected

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class.

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1028 (9th Cir. 2006) (citing McDonnell Douglas, 411 U.S. at 802).

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The degree of proof necessary to establish a prima face case is

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“minimal and does not even need to rise to the level of a

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preponderance of the evidence.”

Dominguez-Curry

Under

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,

Lyons v. England, 307 F.3d 1092,
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1112 (9th Cir. 2002).

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If the plaintiff successfully establishes her prima

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facie case, the “burden of production, but not persuasion, []

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shifts to the employer to articulate some legitimate,

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nondiscriminatory reason for the challenged action.”

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Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000)

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(citing McDonnell Douglas, 411 U.S. at 802).

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employer carries its burden, the plaintiff “must [then] show that

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the articulated reason[s] [are] pretextual ‘either directly by

Chuang v.

Assuming the

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persuading the court that a discriminatory reason more likely

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motivated the employer or indirectly by showing that the

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employer’s proffered explanation is unworthy of credence.’”

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Chuang, 225 F.3d at 1124 (citing Tex. Dep’t of Cmty. Affairs v.

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Burdine, 450 U.S. 248, 256 (1981)).

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pretext indirectly, circumstantial evidence of pretext must be

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“specific and substantial” to survive motion for summary

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judgment, but if directly, “any indication of discriminatory

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motive . . . may suffice to raise a question that can only be

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resolved by the factfinder.”

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If the plaintiff proves

Lyons, 307 F.3d at 1113.

Plaintiff’s Prima Facie Showing for Her Sex

Discrimination Claim
Plaintiff easily satisfies the first and third elements

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of her prima facie case because as a Hispanic woman she is a

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member of a protected class, and her termination qualifies as an

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adverse employment action.

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plaintiff meets these elements).)

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(See Def.’s Mem. at 11 (conceding

Plaintiff also raises a genuine factual dispute
regarding the second element, that she was performing her job
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satisfactorily at the time of her discharge.

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years, plaintiff never received a negative performance

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evaluation.

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before the Department discharged plaintiff effusively

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complimented her, stating, for example: “Orie has a great

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relationship with the three EBT Specialists she manages,” (Garcia

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Aff. Ex. A at 4); “A direct result of [her] proactive approach is

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an improved working relationship with our biggest customer, the

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Division of Welfare. . . . I have confidence that Orie will be

(Garcia Aff. ¶ 5.)

For thirty-two

The most recent evaluation

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able to take this customer communication to the next level,” (id.

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at 5); “Decision making is one of Orie’s key strengths.

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intimate knowledge of the EPS system and IBES is a formidable

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tool when issues arise,” (id.).

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plaintiff had been performing her job as EBT Operations

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Supervisor to the Department’s satisfaction for the ten years she

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served in that role.

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the minimal showing required at the prima facie stage.

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Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 660

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(9th Cir. 2002) (holding that the prima facie showing only

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requires a “minimal inference” that an employee’s job performance

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was satisfactory and finding that evidence that there were no

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formal write-ups or disciplinary notices against employee,

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together with his own positive self-assessment, was sufficient

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for that inference).

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Her

By the time of her termination,

(Garcia Aff. ¶ 4.)

This showing exceeds
See

Defendant argues that plaintiff’s conduct just prior to

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her dismissal rendered her unqualified for her position.

(Def.’s

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Mem. at 11.)

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transgressions relating to her email usage until Deputy Director

But defendant did not discover plaintiff’s alleged

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Taylor asked IT to retrieve data from plaintiff’s computer.

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this fact a reasonable juror could conclude plaintiff’s conduct

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had no impact on plaintiff’s work product or her fundamental

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duties as EBT Operations Supervisor.

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plaintiff divulged confidential information to a fellow employee,

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it is disputed whether this had an impact on her job performance.

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Disputed material issues of fact exist as to whether plaintiff

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was satisfactorily performing her job.

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From

Furthermore, although

Plaintiff has a more difficult time meeting the fourth

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element of the prima facie showing for her sex discrimination

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claim, that a similarly situated employee was treated more

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favorably.

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material respects.”

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Cir. 2006) (citing cases).

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who engaged in conduct of comparable seriousness to hers.

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Cornwell, 439 F.3d at 1028.

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male comparators: Scott Earle, Seth Wheeler, and Bob Curl.

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(Compl. ¶¶ 24-26; Def.’s Mem. at 7.)

“Similarly situated” means “similarly situated in all
See Moran v. Selig, 447 F.3d 748, 755 (9th
Plaintiff must point to an employee

Plaintiff points to three white,

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The Department found that Earle, like plaintiff, spent

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excessive time on non-work-related internet sites during regular

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work hours.

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about Earle and Information Technology staff reviewed Earle’s

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internet use.

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reprimanded Earle, but it did not discharge him.

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Unlike Earle, plaintiff was never given a warning regarding her

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internet usage.

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undisputed that plaintiff also divulged confidential information

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to a Department employee who was not party to the contract

(Young Aff. ¶ 8.)

(Id.)

In 2009, an employee complained

On April 9, 2009, the Department

(Garcia Aff. ¶ 16.)

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(See id.)

However, because it is

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review, Earle was not similarly situated “in all material

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respects.”

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there were some similarities between employees’ circumstances,

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they were not similar “in all material respects” (internal

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quotations omitted)); Collins v. Potter, 431 Fed. Appx. 599, 600

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(9th Cir. 2011) (holding plaintiff and comparator were not

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similarly situated because they were not subject to the same

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employment agreement nor was the other employee dishonest or

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insubordinate to a supervisor); Shumway v. United Parcel Service,

See Moran, 447 F.3d at 755 (holding that although

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118 F.3d 60, 64 (2d Cir. 1997) (holding that although plaintiff

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and comparator both engaged in intracompany dating, there were

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“so many distinctions” between the two employees, including the

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gravity of the misconduct and the fact that there were other

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complaints of misconduct against plaintiff, that it could not be

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concluded that plaintiff “engaged in comparable conduct”).

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assuming Earle’s internet use was as excessive as plaintiff’s,

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Earle did not reveal confidential information after being warned

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not to by his supervisors, which makes his circumstances

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distinguishable.

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Even

The parties dispute the details of Wheeler’s conduct.

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According to plaintiff, it was common knowledge that Wheeler

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often parked cars he was attempting to sell in the Department

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parking lot of its Pocatello office, (Garcia Aff. ¶ 20), but the

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Department never disciplined him, (Young Aff. ¶ 10).

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Young, a human resources manager at the Department, states that

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Wheeler was approved for selling used cars in his spare time, and

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parked a car with a for-sale sign in the window in a non-

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Department parking space.

Monica

Even if Wheeler had parked cars in the
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Department parking lot, no reasonable juror could conclude that

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Wheeler’s conduct was similar to plaintiff’s.

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showing that plaintiff sent from her work email account regarding

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her outside real estate business, plaintiff’s emails reveal she

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disclosed information to other employees that she was asked to

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keep confidential.

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evidence showing that Wheeler’s supervisors were aware that

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Wheeler was engaged in any misconduct at the time.5

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In addition to

Furthermore, plaintiff has not provided

Plaintiff had accused Curl in November 2011 of saving

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pornography to the Department’s shared drive, but a further

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investigation revealed that there was insufficient evidence to

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conclude he saved the photograph.

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has offered no evidence showing the Department had sufficient

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reasons to discipline Curl for the incident.

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“similarly situated” to plaintiff, because in plaintiff’s case

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the Department had evidence showing she authored emails it

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believed violated its policies.

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(Young Aff. ¶ 9.)

Plaintiff

Curl is thus not

The requirement that plaintiff must point to a

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comparator is not necessarily applicable in every factual

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situation, so long as a plaintiff shows “circumstances

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surrounding the adverse employment action that give rise to an

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Plaintiff argues that “[j]ust because no complaint was
made and/or no violation was found against Mr. Wheeler does not
mean such conduct was not taking place or that Mr. Wheeler’s
supervisors didn’t approve by acquiescence.” (Pl.’s Mem. at 10.)
While it is true that the absence of evidence of a formal
complaint does not preclude finding Wheeler was “similarly
situated,” plaintiff has provided no evidence raising the
inference that the Department was aware of and “approve[d] by
acquiescence” Wheeler’s conduct beyond stating it was “common
knowledge,” (Garcia Aff. ¶ 20).
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inference of discrimination.”

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F.3d 1151, 1156 (9th Cir. 2010).

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comparison between her and other employees to raise such an

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inference, as plaintiff does here, she must satisfy this element.

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Id.

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Hawn v. Exec. Jet Mgmt., Inc., 615
But where a plaintiff invokes a

The only other evidence of sex discrimination plaintiff

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offers is that Spannknebel made unwelcome and inappropriate

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sexual advances toward her from October 2010 through February or

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March of 2011, which she rejected.

(Garcia Dep. at 19:11-34:25.)

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This included a forcible kiss in public in the presence of other

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Department employees.

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provide a basis for a sexual harassment claim, plaintiff did not

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allege such a claim in her Complaint.

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on the Spannknebel incidents to raise an inference of

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discrimination.

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Spannknebel felt she had mishandled the contract, which prompted

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the review.

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(Id.)

While these facts could arguably

Instead, plaintiff relies

Plaintiff states Gamet and Pearson told her that

(Garcia Aff. ¶ 18.)

The Supreme Court has held that where a supervisor

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performs an act motivated by animus that is designed to lead to

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an adverse employment action, if that act is also the proximate

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cause of an adverse employment action, then the employer can be

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liable for employment discrimination.

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- U.S. ----, 131 S. Ct. 1189, 1194 (2011).

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plaintiff’s supervisors made false reports and issued him a

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corrective action, all of which the plaintiff alleged were

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fabricated and motivated by animus toward his military

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obligations.

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in deciding to fire the plaintiff.

Id. at 1189.

Staub v. Proctor Hosp., -In Staub, the

The employer relied on those reports

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Id.

The Court reasoned that

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“[a]n employer’s authority to reward, punish, or dismiss is often

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allocated among multiple agents.

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decision does so on the basis of performance assessments by other

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supervisors.”

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from suits for the intentionally discriminatory acts of

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supervisors designed to cause an adverse employment action by

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simply isolating a personnel official from those supervisors.

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Id. at 1193.

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employer’s investigation results in an adverse action for reasons

Id. at 1192-93.

The one who makes the ultimate

An employer cannot shield itself

The Court further held, however, that “if the

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unrelated to the supervisor’s original biased action . . . then

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the employer will not be liable.”

Id. at 1193.

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Even if plaintiff could show that Spannknebel ordered

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the contract review because plaintiff had refused his advances,

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this would still not be enough to raise an inference that the

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Department discharged plaintiff because of her sex.

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has offered no evidence that Spannknebel’s expressed, and

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allegedly vindictive, dissatisfaction with her performance on the

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JP Morgan contract was the proximate cause for her discharge.

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the contrary, the Department’s investigation resulted in

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plaintiff’s discharge “for reasons unrelated” to Spannknebel’s

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comments regarding her mishandling of the contract, the “original

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biased action.”

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Taylor, not Spannknebel, decided to review plaintiff’s work

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emails. (Taylor Aff. ¶ 5.)

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contents of those emails, and not plaintiff’s mishandling of the

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contract, provided the basis for her discharge, (Taylor Aff. ¶

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9), and plaintiff offers no evidence to raise a genuine dispute

See Staub, 131 S. Ct. at 1193.

Plaintiff

To

Deputy Director

The Department states that the

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of fact on this issue.6

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By failing to show similarly situated Department

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employees who were male received more favorable treatment than

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plaintiff, plaintiff has failed to make out a prima facie case of

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sex discrimination.

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plaintiff, the evidence in the record may show that defendant’s

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discharge of plaintiff was callous and unfair, but it does not

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give rise to an inference that the Department discriminated

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against plaintiff because of her sex.

Viewed in the light most favorable to

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2.

Plaintiff’s Prima Facie Showing for her Race Claim

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Plaintiff can meet the fourth element of a prima facie

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showing of discrimination by showing the Department replaced her

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with someone who was outside her protected class.

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Los Angeles Comty. Coll. Dist., 702 F.2d 203, 206 (9th Cir.

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1983).

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because after firing her, the Department filled her position with

See Jones v.

Plaintiff meets the fourth element on her race claim,

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In Staub, the Court also suggested that a supervisor’s
“biased report” could be taken into account when evaluating
whether the adverse employment was, apart from the supervisor’s
evaluation, entirely justified. Staub, 131 S. Ct. 1186 at 1193.
However, the “biased report” at issue in Staub is distinguishable
from Spannknebel’s involvement in plaintiff’s case. In Staub,
the plaintiff alleged the “biased reports” were totally
fabricated. Id. Here, plaintiff’s emails, the content of which
is not in dispute, reveal that several people on the Department
contracts team were concerned that plaintiff’s conduct regarding
the JP Morgan contract compromised the Department’s authority.
(Gamet Aff. Ex. J at DHW0544.) Spannkenebel’s comments on
plaintiff’s handling of the contract are thus corroborated by the
views of other employees. They are a far cry from the unfounded
“biased report” the Court discusses in Staub. Therefore, there
is no basis to find that Spannknebel’s comments, which plaintiff
states she learned about through Pearson and Gamet, serve as
evidence that her discharge was unjustified.
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a woman who was white.

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placed plaintiff on administrative leave, until January 7, 2013,

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John Wyatt, an Electronic Benefit Transfer Specialist performed

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ninety percent of plaintiff’s former duties.

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Aff. ¶ 3.)

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position, he advised the Department to hire someone else because

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he intended to retire.

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hired Alyce Porter to permanently assume plaintiff’s former

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duties, (id. ¶ 5.), and plaintiff contends Porter, not Wyatt, was

From March 15, 2012, when the Department

(Young Rebuttal

While Wyatt was eligible for plaintiff’s former

(Id. ¶ 4.)

In January, the Department

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her replacement, (Garcia Aff. at 4).7

11

unapparent from the parties’ filings, at oral argument defendant

12

admitted that Porter is white.

13

triable issue of how her qualifications compare to Porter’s.8

14

Because a reasonable juror could infer that Porter, as

15

plaintiff’s replacement, was similarly qualified, plaintiff has

16

met the “minimal” showing of this element required under

17

McDonnell Douglas.

Although Porter’s race is

Plaintiff has also raised a

18

3.

Pretext

19

Even if plaintiff meets her prima facie showing for a

20

race discrimination claim, a reasonable juror could not

21

ultimately conclude she was fired because of her race.

The

22
7

23
24
25
26
27
28

Because Porter is female, the same sex as plaintiff,
plaintiff cannot use the Department’s decision to hire Porter as
her replacement as a basis for her prima facie showing of sex
discrimination.
8

Defendant submits Porter’s application, indicating she
has several degrees, including a Masters in Public
Administration. (Young Rebuttal Aff. Ex. A.) However, because
plaintiff spent ten years in her position, a genuine dispute
exists regarding how plaintiff’s experience compares to Porter’s.
16

1

Department offers as its legitimate nondiscriminatory reasons

2

that it fired plaintiff because her emails revealed that she

3

divulged confidential information to a fellow employee;

4

disparaged coworkers; and conducted outside employment on the

5

Department’s time.

6

direct evidence of race discrimination and thus must show through

7

specific, substantial circumstantial evidence that the

8

Department’s proffered reasons for firing her are prextexual.

9

Lyons, 307 F.3d at 1113.

10

(Taylor Aff. ¶ 9, Ex A.)

Plaintiff offers no

Plaintiff attempts to show the Department’s explanation

11

that she was fired in part because of her use of work hours to

12

send real estate emails is unworthy of credence.

13

F.3d at 1124 (holding that on summary judgment, where plaintiff

14

lacks direct evidence of discriminatory motive, she may prove

15

pretext by showing the employer’s proffered reason is “unworthy

16

of credence”).

17

during Department working hours but states she sent those emails

18

during her lunch or personal break time.

19

Plaintiff points to a proceeding regarding plaintiff’s

20

eligibility for unemployment benefits, in which the Industrial

21

Commission found her transgressions did not rise to the level of

22

“misconduct” required to deny her unemployment benefits.

23

agency found “it is unclear exactly what [the Department]

24

expected of [plaintiff] in terms of email use for personal

25

purposes.”

26

“most of the IDHW policy provisions dealing with [personal

27

internet use] are ambiguous and/or contradictory,” and that it

28

did not appear plaintiff’s email use interfered with her work.

See Chuang, 225

Plaintiff concedes she sent real estate emails

(Garcia Aff. Ex. D at 6.)

17

(Garcia Aff. ¶ 15.)

The

The Commission noted that

1

Plaintiff also adduces evidence suggesting the

2

Department failed to follow protocol in disciplining her for this

3

conduct.

4

“[outside] employment or activity impairs the employee’s ability

5

to perform, the employee will be requested in writing by the

6

Appointing Authority to modify or cease that employment activity

7

within five working days” before discipline ensues.

8

Ex. C.)

9

instead put her on leave and then terminated her.

10
11

The Department’s policy states that where the

(Garcia Aff.

The Department never gave plaintiff written notice and
(Garcia Aff. ¶

16.)
This evidence, however, fails to address the credence

12

of the Department’s other stated reasons for plaintiff’s

13

discharge, which the court finds to most worthy of credence.

14

Chuang, 225 F.3d at 1124.

15

decision to terminate plaintiff involved other concerns it

16

developed at the same time it discovered her real estate emails,

17

including her violation of her supervisor’s directive not to

18

share information relating to the JP Morgan contract review with

19

fellow employees.

20

that she divulged information to Walgamott despite being told to

21

keep it secret, (Garcia Aff. Ex. E (“Garcia Dep.”) at 60:3-6

22

(Docket No. 16-7)), and she has not offered any evidence creating

23

a triable issue of the credence of this legitimate

24

nondiscriminatory reason.

25

See

The Department states its ultimate

(Taylor Aff. ¶ 9, Ex. A.)

Plaintiff admitted

Therefore, even if the real estate emails were a flimsy

26

reason for discharging plaintiff, plaintiff has failed to show

27

the other reasons stated by her employer, including plaintiff’s

28

breach of confidentiality, were groundless or otherwise unworthy
18

1

of credence.

2

credence, plaintiff has failed to offer specific and substantial

3

circumstantial evidence that Department’s proffered reasons are

4

pretext for discrimination.

5

509 U.S. 502, 515 (1993) (holding “pretext” means “pretext for

6

discrimination”).

7

In failing to show those other reasons lacked

See St. Mary’s Honor Ctr. v. Hicks,

Plaintiff also contends that a lack of any prior

8

discipline, (Garcia Aff. ¶ 4), coupled with the “minimal severity

9

of the alleged transgressions,” raises an inference of pretext.

10

A plaintiff may use evidence of a stellar performance record to

11

show pretext to contradict an employer’s representation that the

12

discharge was due to poor performance.

13

Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2001) (holding

14

plaintiff tendered sufficient evidence to rebut employer’s

15

assertion that it fired her due to poor performance where

16

plaintiff showed she had received only positive feedback).

17

However, defendant did not discharge plaintiff because of her

18

poor performance, but rather because of several specific

19

transgressions.

20

Department’s proffered reasons for her discharge, and her

21

assertion that the transgressions were minimal in severity is

22

conclusory and unsupported by any evidence.9

23
24
25
26
27
28

9

See Little v. Windermere

Plaintiff’s evidence does not undercut the

Plaintiff points to the Commission’s finding that the
transgressions did not amount to “misconduct” as proof that they
were minimal in severity. (See Pl.’s Opp’n at 19.) However, the
Commission’s findings were pertinent to plaintiff’s eligibility
for unemployment benefits, not whether there were sufficient
grounds for her dismissal. “What constitutes ‘just cause’ in the
mind of an employer for dismissing an employee is not the legal
equivalent of ‘misconduct’ under Idaho’s Employment Security Law.
Therefore, whether the employer had reasonable grounds according
19

1

Lastly, plaintiff attempts to show pretext by pointing

2

to the fact that Spannknebel was involved in deciding to

3

investigate plaintiff’s handling of the JP Morgan contract.

4

Plaintiff argues that “[t]he clear inference is that the contract

5

review was instigated for other pretextual purposes, i.e., to

6

find something IDHW could possibly use as reason [sic] for

7

[plaintiff]’s termination.”

8

the reasons discussed above, plaintiff has failed to show

9

Spannknebel’s statements regarding plaintiff were the cause of

10

(Pl.’s Opp’n at 18.)

However, for

her discharge.

11

“[I]n those cases where the prima facie case consists

12

of no more than the minimum necessary to create a presumption of

13

discrimination under McDonnell Douglas, plaintiff has failed to

14

raise a triable issue of fact.”

15

F.3d 885, 890 (9th Cir. 1994).

16

replaced by a substantially younger woman, plaintiff has failed

17

in her burden to adduce evidence raising an inference that the

18

Department terminated her because of her age.

19
20
21

C.

Wallis v. J.R. Simplot Co., 26
Here, even if plaintiff was

Defendant’s Eleventh Amendment Defense to Plaintiff’s

Age Discrimination Claim
In its Reply, defendant argues that plaintiff’s claim

22

of age discrimination under the ADEA is barred by the Eleventh

23

Amendment.

24

or state agency absent a valid waiver or abrogation of its

25

sovereign immunity.

The Eleventh Amendment bars any suit against a state

Seminole Tribe of Fla. v. Florida, 517 U.S.

26
27
28

to its own standards for dismissing a claimant is not controlling
of the outcome of these cases.” (Garcia Aff. Ex. D at 4(“Garcia
v. Dep’t of Health & Welfare (2012)”).)
20

1

44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 10 (1890) (holding

2

that the Amendment bars suits against a state by citizens of that

3

same state as well as suits brought by citizens of another

4

state).

5

state agency is sued for damages or injunctive relief, Alabama v.

6

Pugh, 438 U.S. 781, 782 (1978), and regardless of whether the

7

plaintiff’s claim arises under federal or state law, Pennhurst

8

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121, (1984).

9

The Supreme Court has held that the ADEA did not

This immunity applies regardless of whether a state or

10

abrogate the states’ sovereign immunity to suits by private

11

individuals.

12

(2000).

13

waived its immunity to ADEA claims, and plaintiff conceded at

14

oral argument that Kimel could operate to bar her ADEA claim.

15

She argues, however, that defendant waived its sovereign immunity

16

defense by failing to raise it in a timely motion.

17

Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91

The State of Idaho does not appear to have expressly

“[A] state may waive its Eleventh Amendment immunity by

18

conduct that is incompatible with an intent to preserve that

19

immunity.”

20

758 (9th Cir. 1999).

21

an affirmative defense in its Answer, stating: “Some or all of

22

plaintiff’s causes of action are barred by operation of the

23

Eleventh Amendment to the United States Constitution.”

24

at 5.)

25

Reply brief in support of its motion for summary judgment.

26

(Def.’s Reply at 10.)

27

to reply to defendant’s Eleventh Amendment Immunity argument

28

prior to oral argument in the form of a letter brief.

Hill v. Blind Indus. and Servs. Of Md., 179 F.3d 754,
Defendant raised the Eleventh Amendment as

(Answer

Defendant did not assert this defense again until its

The court gave plaintiff the opportunity

21

(October

1

30, 2014 Order (Docket No. 22).)

2

Plaintiff argues defendant’s participation in

3

litigation on the merits of plaintiff’s ADEA claim constituted a

4

waiver of its immunity.

5

Santiago Community College District, where the court found the

6

defendant waived its sovereign immunity defense even after

7

“baldly assert[ing]” the defense in its Answer.

8

1021 (9th Cir. 2010).

9

this case.

She analogizes to Johnson v. Rancho

623 F. 3d 1011,

Johnson, however, is distinguishable from

In Johnson, the court found that parties had engaged

10

in “extensive proceedings in the district court.”

11

motion for summary judgment was the first dispositive motion

12

filed by defendants.

13

argument that there is substantial factual overlap between her

14

ADEA and Title VII claims, the latter of which were not barred by

15

the Eleventh Amendment.

16

proceedings in this case “extensive,” defendant’s participation

17

in those proceedings “to defend on the merits” could not fairly

18

be said to constitute an implicit waiver of immunity, because it

19

was obligated to litigate the Title VII claims.

20

Id.

Here,

Moreover, plaintiff conceded at oral

Even if the court were to consider the

Additionally, in Johnson, the defendant “filed a motion

21

to dismiss and a summary judgment motion without pressing a

22

sovereign immunity defense,” which amounted to a “tactical delay”

23

that wasted judicial resources.

24

defense, albeit in an untimely fashion, in the context of its

25

motion for summary judgment, filed less than a year after the

26

action was initiated, and before any other pretrial motions.

27

Because plaintiff was not prejudiced, having had the opportunity

28

to respond prior to oral argument, and because Johnson is

Id.

22

Here, defendant raised the

1

distinguishable, the court cannot conclude that defendant waived

2

its sovereign immunity defense.

3

barred by the Eleventh Amendment.

4

Plaintiff’s ADEA claim is thus
See Kimel, 528 U.S. at 91.

D. Implied Covenant of Good Faith and Fair Dealing

5

Under Idaho law, the covenant of good faith and fair

6

dealing is implied in all contracts and “requires parties to

7

perform in good faith[] the obligations existing under the

8

contract.”

9

1202, 1208 (D. Idaho 2011) (citing Cantwell v. City of Boise, 191

Hurst v. IHC Health Servs., Inc., 817 F. Supp. 2d

10

P.3d 205, 213 (Idaho 2008)).

11

“[b]reach of the covenant occurs where a party violates,

12

qualifies, or significantly impairs any benefit or right of the

13

other party under an employment contract.”

14

quotation marks omitted).

15

In the employment context,

Id. (internal

Plaintiff asserts that defendant breached the covenant

16

of good faith and fair dealing by discharging her from her

17

employment for unlawful discriminatory reasons under the pretext

18

of insubordination and performing inappropriate outside work on

19

the defendant’s time.

20

contract allegations echo her discrimination allegations.

21

court has found that a reasonable trier of fact could not

22

conclude plaintiff’s discharge was motivated by race, sex, or

23

age.

24

dispute of whether, taken together, the Department’s asserted

25

reasons for plaintiff’s dismissal were a pretext for

26

discrimination.

27

conclude the Department breached its contractual duty of good

28

faith to plaintiff.

(Compl. ¶ 42.)

In essence, plaintiff’s
The

It also found plaintiff has not raised a genuine factual

Consequently, a reasonable juror could not

23

1

At oral argument, counsel for plaintiff informed the

2

court that plaintiff was fired only a year before she would have

3

been entitled to certain retirement benefits, and suggested that

4

these suspicious circumstances support an inference of pretext.

5

(It would seem to the court that, to the contrary, such

6

circumstances suggest plaintiff was fired for some reason other

7

than discrimination.)

8

not in her complaint or her opposition to the motion for summary

9

judgment or even at oral argument--that these allegedly

Plaintiff has never suggested anywhere--

10

suspicious circumstances support her claim for breach of the

11

implied covenant of good faith and fair dealing.

12

the court to construct an argument for plaintiff from her bare

13

assertions, so the court will not address the merits of such an

14

argument.10

15

It is not for

IT IS THEREFORE ORDERED that defendant’s motion for

16

summary judgment be, and the same hereby is, GRANTED.

The Clerk

17

is directed to enter judgment in favor of the defendant and

18

against the plaintiff in this action.

19

Dated:

November 7, 2014

20
21
22
23
24
25
26
27
28

10

Even if the court were to find reason to address this
argument, it would decline to exercise supplemental jurisdiction
over this state law claim pursuant to 28 U.S.C. § 1367(c)(3),
because the court has dismissed all claims over which it had
original jurisdiction.
24