Jepsen v. Corrections Corporation of America et al

Filing 23

MEMORANDUM AND ORDER RE: MOTION TO DISMISS granting in part and denying in part 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Plaintiff has twenty days from the date this Order is signed to file an amended complaint. 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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SHANE JEPSEN, an individual,
Plaintiff,

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CIV. NO. 1:13-454 WBS
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

v.
CORRECTIONS CORPORATION OF
AMERICA, a Tennessee
Corporation; and KEVIN MYERS,
in his individual and
official capacity,

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Defendants.

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----oo0oo----

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Plaintiff Shane Jepsen brought this action against

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defendants Corrections Corporation of America (“CCA”) and Kevin

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Myers arising out of the termination of plaintiff’s employment at

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the Idaho Correctional Center (“ICC”).

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dismiss the Complaint pursuant to Federal Rule of Civil Procedure

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12(b)(6) for failure to state a claim on which relief can be

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granted.

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Defendants now move to

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I.

Factual & Procedural Background

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CCA is a for-profit corporation that operates prisons

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across the country, including the ICC.

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Myers is an employee of CCA and is the Managing Director of the

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ICC.

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and the State of Idaho, CCA is responsible for operating and

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managing the ICC, which houses over 2,000 prisoners.

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Plaintiff began working at the ICC in 2000 as a correctional

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officer and was promoted to Chief of Security in 2008.

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(Id. ¶ 52.)

(Compl. ¶ 51.)

Kevin

Under the terms of a contract signed by CCA

(Id. ¶ 51.)

(Id. ¶¶

56-57.)

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Plaintiff alleges that defendants became aware of

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persistent staffing vacancies at the ICC in 2010 and that CCA

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officials “reformatted the ICC staffing [r]osters” to conceal

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those staffing vacancies.

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2010, plaintiff informed CCA and Warden Timothy Wengler of these

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staffing vacancies in an e-mail “detailing the vacancies during

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each day and night shift from August 27, 2010 through September

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9, 2010.”

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a memorandum to Wengler and two Assistant Wardens documenting

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vacancies at the ICC.

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that CCA hire accordingly to fill each vacancy[] and amend the

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contract with IDOC.”1

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the issue of staffing vacancies to his supervisors and to other

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CCA employees throughout 2011 and 2012.

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(Id. ¶ 70.)

(Id. ¶¶ 62-69.)

On September 10,

On November 3, 2010, plaintiff circulated

(Id. ¶¶ 71-73.)

(Id. ¶ 73.)

Plaintiff “recommended

Plaintiff continued to raise

(Id. ¶¶ 75-83.)

In early January 2013, Captain Earl Johnson informed
plaintiff that an IDOC official was aware that “there may be
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“IDOC” is an acronym for the Idaho Department of
Corrections.
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potential falsification of shift documents” and that ICC

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officials could face prosecution as a result.

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Plaintiff obtained written documentation of these reports from

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Johnson and forwarded them to Myers and two Assistant Wardens at

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the ICC.

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Associated Press published an article about allegations that ICC

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employees had falsified shift rosters.

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plaintiff on administrative leave on January 28, 2013.

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90.)

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(Id. ¶¶ 85-86.)

(Id. ¶ 84.)

Later that month, a reporter with the

(Id. ¶ 88.)

CCA placed
(Id. ¶

After CCA conducted an internal investigation, it

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issued a press release on April 11, 2013 in which it stated that

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it had discovered “some inaccuracies” in shift rosters, that it

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had informed IDOC of these inaccuracies, and that it “deeply

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regret[ted] the decisions made by ICC staff members.”

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98.)

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disciplinary action with the involved personnel.”

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terminated plaintiff’s employment on April 23, 2013.

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(Id. ¶

The press release stated that CCA “will take appropriate
(Id.)

CCA

(Id. ¶ 99.)

That day, Myers allegedly sent plaintiff a letter

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informing plaintiff that CCA’s investigation had revealed

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inconsistencies in the staffing records, that compliance with the

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staffing requirements set by IDOC fell within plaintiff’s duties

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as Chief of Security, and that there was evidence that plaintiff

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had “failed to investigate and take corrective action.”

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100.)

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that month in which he informed ICC employees that plaintiff “had

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been terminated as a result of the roster falsification.”

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104.)

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disclosed Jepsen’s termination within the relatively small

(Id. ¶

Myers allegedly held meetings with ICC staff members later

Plaintiff also alleges that “CCA officials publicly

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(Id. ¶

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community of corrections professionals in Idaho.”

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Plaintiff alleges that Myers’ accusations of wrongdoing are false

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and that Myers and “CCA officials used [plaintiff] as a scapegoat

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for CCA’s wrongdoing.”

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(Id. ¶ 106.)

(Id. ¶ 115.)

Plaintiff brought this action on October 21, 2013, and

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alleges five2 claims: (1) a claim against CCA under the Idaho

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Protection of Public Employees Act, I.C. § 6-2101; (2) a claim

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against CCA for wrongful termination in violation of public

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policy; (3) a claim against both CCA and Myers for deprivation of

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procedural due process in violation of 42 U.S.C. § 1983; (4) a

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claim against both CCA and Myers for intentional infliction of

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emotional distress (sometimes “IIED”); and (5) a claim against

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both CCA and Myers for negligent infliction of emotional distress

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(sometimes “NIED”).3

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dismiss the Complaint pursuant to Rule 12(b)(6) for failure to

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state a claim on which relief can be granted.

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II.

(Docket No. 1-1.)

Defendants now move to

(Docket No. 10.)

Discussion

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On a motion to dismiss, the court must accept the

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allegations in the complaint as true and draw all reasonable

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inferences in favor of the plaintiff.

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U.S. 232, 236 (1974), overruled on other grounds by Davis v.

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Scheuer v. Rhodes, 416

Although plaintiff alleges a single cause of action for
“Intentional and/or Negligent Infliction of Emotional Distress,”
(Id. ¶¶ 155-163), Idaho law treats negligent and intentional
infliction of emotional distress as separate causes of action.
See, e.g., Curtis v. Firth, 123 Idaho 598, 601 (1992). The court
will therefore analyze plaintiff’s negligent and intentional
infliction of emotional distress claims separately.
3
Plaintiff contends, and defendants do not dispute, that
the court may exercise diversity jurisdiction over his state-law
claims even if it dismisses plaintiff’s sole federal claim under
§ 1983. (See Compl. ¶¶ 50-53.)
4

1

Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322

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(1972).

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plead “only enough facts to state a claim to relief that is

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plausible on its face.”

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544, 570 (2007).

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for more than a sheer possibility that a defendant has acted

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unlawfully,” and where a complaint pleads facts that are “merely

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consistent with” a defendant’s liability, it “stops short of the

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line between possibility and plausibility.”

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11

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Bell Atl. Corp. v. Twombly, 550 U.S.

This “plausibility standard,” however, “asks

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556–57).
A.

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To survive a motion to dismiss, a plaintiff needs to

42 U.S.C § 1983
In relevant part, § 1983 provides:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . , subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity or
other proper proceeding for redress . . . .

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42 U.S.C. § 1983.

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substantive rights, it provides a cause of action against any

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person who, under color of state law, deprives an individual of

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federal constitutional rights or limited federal statutory

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rights.

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While § 1983 is not itself a source of

Id.; Graham v. Connor, 490 U.S. 386, 393-94 (1989).
“Although § 1983 makes liable only those who act under

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color of state law, even a private entity can, in certain

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circumstances, be subject to liability under section 1983.”

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v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012)

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(citation and internal quotation marks omitted).

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allege that a private entity acted under color of state law, a
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Tsao

In order to

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plaintiff must allege facts showing that “the conduct allegedly

2

causing the deprivation of a federal right [was] fairly

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attributable to the State.”

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922, 937 (1982).

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Lugar v. Edmondson Oil Co., 457 U.S.

“The Supreme Court has identified at least four tests

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for determining whether a private entity’s actions “amount to

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state action: (1) the public function test; (2) the joint action

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test; (3) the state compulsion test; and (4) the governmental

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nexus [or pervasive entwinement] test.”

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Franklin v. Fox, 312

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F.3d 423, 445 (9th Cir. 2002).

“Satisfaction of any one test is

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sufficient to find state action, so long as no countervailing

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factor exists.”

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2003) (citation omitted); see also Brentwood, 531 U.S. at 304

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(holding that if the “facts justify a conclusion of state action

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under [one] criterion,” that “conclusion [is] in no sense

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unsettled merely because other criteria of state action may not

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be satisfied by the same facts”).

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conduct constitutes state action under both the public function

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and pervasive entwinement tests.

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No. 13).)

Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.

Plaintiff contends that CCA’s

(Pl.’s Opp’n at 3-12 (Docket

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1.

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“Under the public function test, ‘when private

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Public Function Test

individuals or groups are endowed by the State with powers or

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While the leading Supreme Court case labels this test
the “pervasive entwinement test”, see Brentwood Acad. v. Tenn.
Secondary Sch. Athletics Ass’n, 531 U.S. 288, 304 (2001) courts
in the Ninth Circuit frequently use the term “governmental nexus
test.” See, e.g., Lee v. Katz, 276 F.3d 550, 554 n.4 (9th Cir.
2002). Because plaintiff and the Supreme Court have both used
the label “pervasive entwinement,” the court will do so as well.
6

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functions governmental in nature, they become agencies or

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instrumentalities of the state and subject to its constitutional

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limitations.’”

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382 U.S. 296, 299 (1966)).

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the function at issue must be both traditionally and exclusively

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governmental.”

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U.S. 830, 842 (1982)).

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under the public function test, a private entity “may be a state

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actor for some purposes but not for others.”

Lee, 276 F.3d at 554-55 (quoting Evans v. Newton,
“To satisfy the public function test,

Id. at 555 (citing Rendell-Baker v. Kohn, 457
The Ninth Circuit has recognized that

George v. Pac.-CSC

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Work Furlough, 91 F.3d 1227, 1230 (9th Cir. 1996) (citing Gorenc

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v. Salt River Project Agric. Improvement & Power Dist., 869 F.2d

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503, 509 (9th Cir. 1989)).

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The Supreme Court has left open the question of whether

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a private prison corporation is a state actor with respect to its

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management of prisons like the ICC.

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521 U.S. 399, 413 (1997).

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question because plaintiff’s allegations establish that CCA acted

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in its role as plaintiff’s employer, rather than in its custodial

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role over the ICC’s inmates, when it terminated plaintiff’s

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employment.

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and firing of its employees,” rather than its supervision of the

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ICC’s inmates, plaintiff can only prevail under the public

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function test if he can show that CCA exercised a public function

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when it terminated plaintiff’s employment.

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507.

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See Richardson v. McKnight,

The court need not resolve this

Because those allegations relate to CCA’s “hiring

Gorenc, 869 F.2d at

The facts in George closely parallel the facts here.

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There, the plaintiff correctional officer observed numerous

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safety and security violations at a correctional facility
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operated by defendant, a corporation that contracted with San

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Diego County to operate the facility.

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plaintiff reported these violations to the corporation’s

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management, despite instructions from his supervisor not to do

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so, and was terminated shortly thereafter for reasons that the

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plaintiff claimed were a pretext for retaliation.

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Circuit held that the defendant was not a state actor under the

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public function test.

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traditional state function,” the court reasoned, the defendant

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did not occupy a traditional state function in its “role as an

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employer.”

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Id. at 1230.

91 F.3d at 1229.

Id.

The

The Ninth

Even if “incarceration is a

Id.

Nor do plaintiff’s allegations show that CCA was

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“acting as the government when it made the staffing decisions on

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which the termination was based.”

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has alleged that CCA is subject to IDOC’s “supervisory and

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monitoring power” with respect to its “operation and management

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of the ICC,” that it is “required to only employ persons who

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satisfy . . . personnel policies” set by state officials,” and

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that it is required “to train its personnel to a level acceptable

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to the [IDOC].”

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are sufficient to establish that IDOC or other state agencies set

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standards that CCA was required to follow when making employment

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decisions, the relevant question is whether CCA was exercising a

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“traditional and exclusively governmental function” when it

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terminated plaintiff.

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(Compl. ¶¶ 8-10.)

(Pl.’s Opp’n at 7.)

Plaintiff

But even if these allegations

Lee, 276 F.3d at 555.5

Plantiff’s reliance on Kelly v. Wengler, --- F. Supp.
2d ----, Civ. No. 1:11-185 EJL, 2013 WL 5797310 (D. Idaho Sep.
16, 2013), is similarly unavailing. Although that decision found
that CCA had violated the terms of an earlier consent decree by
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Cornish v. Correction Services Corporation, although

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not controlling, is instructive.

402 F.3d 545 (5th Cir. 2005).

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Like the plaintiff in George, the plaintiff in Cornish alleged

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that he was terminated by his employer, a private corporation

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that managed a juvenile detention facility, in retaliation for

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reporting unlawful conduct.

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alleged that the defendant occupied a public function because its

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employees were “required to obtain the same certifications” and

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were “regulated by the same government entities” as correctional

Id. at 547-48.

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officers employed by the state.

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these allegations established only that the defendant acted under

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color of state law “in providing juvenile correctional services.”

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Id. (citing George, 91 F.3d at 1230).

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held that defendant had not stated a claim under § 1983 because

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these allegations did not establish that defendant “acted under

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color of state law in terminating [plaintiff’s] employment.”

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Id. at 550.

The plaintiff

The court held that

By contrast, the court

Id.

As in Cornish, plaintiff’s allegations that the IDOC

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set standards for hiring and training ICC employees do not show

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that CCA was performing a public function or that its “decisions

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as an employer are fairly attributable to the State.”

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550; see generally Jackson v. Metro. Edison Co., 419 U.S. 345,

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Id. at

maintaining inadequate staffing levels at the ICC, it did not
discuss whether CCA’s failure to maintain adequate staffing
constituted state action. See id. at *4-7.
More importantly, Kelly is inapposite because it
concerned allegations that the ICC’s inadequate staffing levels
violated the Eighth Amendment rights of its inmates. See id. at
*2. Even if these allegations implicate state action insofar as
they relate to CCA’s care and supervision of its inmates, it
would not follow that CCA exercised a public function when it
made discrete hiring and firing decisions like the one at issue
in this action. See George, 91 F.3d at 1230.
9

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350 (1974) (“The mere fact that a business is subject to state

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regulation does not by itself convert its action into that of the

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State . . . .”).

4

that defendant was exercising a “traditionally and exclusively”

5

governmental function when it terminated his employment, Lee, 276

6

F.3d at 555, he has not shown that CCA’s conduct constitutes

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state action under the public function test.

Accordingly, because plaintiff has not alleged

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2.

Pervasive Entwinement Test

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The pervasive entwinement test focuses on whether

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“there is such a close nexus between the State and the challenged

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action that seemingly private behavior may be fairly treated as

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that of the State itself.”

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Ass’n, 541 F.3d 950, 955 (9th Cir. 2008) (citing Brentwood, 531

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U.S. at 295); see also Brentwood, 531 U.S. at 299 (noting that

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state action exists where a defendant’s “nominally private

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character . . . is overborne by the pervasive entwinement of

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public institutions and public officials in its composition and

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workings”).

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the Ninth Circuit has clarified that the pervasive entwinement

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test “consider[s] whether [the plaintiff’s] pleadings demonstrate

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sufficiently close state involvement in [the defendant’s]

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decision to fire him.”

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Gorenc, 869 F.2d at 507 (holding that, under the pervasive

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entwinement test, a private entity may be treated as a state

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actor “for some purposes . . . while for other purposes it has

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only the power of a private company”).

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28

Villegas v. Gilroy Garlic Festival

When a plaintiff alleges retaliatory termination,

George, 91 F.3d at 1230-31; see also

Here, plaintiff contends that his allegations
demonstrate an “extensive and complex” relationship between CCA
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and IDOC, in which IDOC retained considerable authority over

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ICC’s hiring, staffing, and training decisions.

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at 10-11.)

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do not establish that IDOC or any other state agency was entwined

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in discrete hiring and firing decisions.

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(See Pl.’s Opp’n

As with the public function test, these allegations

The Ninth Circuit’s decision in George is also germane

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to this issue.

There, the plaintiff relied heavily on a copy of

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his employment contract with the defendant, which the plaintiff

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offered as proof of “governmental involvement with the hiring

10

decision” and that the government “could have regulated its

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employment decisions.”

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conceded that this contract “does show that the County regulates

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[defendant’s] employees to some degree,” and that the County

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“retains the right to preclude [defendant] from employment or

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continued employment of any individual at the facility,” it

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nonetheless held that “[t]here is . . . no County or state

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regulation of [defendant’s] employment termination or

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disciplinary processes.”

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91 F.3d at 1231.

Although the court

Id.

The Ninth Circuit recently reaffirmed this reasoning in

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Caviness v. Horizon Community Learning Center, Inc., where it

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held that the termination of the plaintiff, a teacher at a

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charter school operated by defendant, did not constitute state

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action.

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argued that because the state “regulates the personnel matters of

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charter schools,” it was pervasively entwined with the decision

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to terminate him.

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held instead that “[e]ven when the state has the power ‘initially

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to review the qualifications of a[n employee] selected by the

590 F.3d 806, 818 (9th Cir. 2010).

Id. at 816.

There, the plaintiff

The Ninth Circuit disagreed and

11

1

school,’ such regulation is not sufficient to make the school’s

2

employment-related actions those of the state.”

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(citing Rendell-Baker, 457 U.S. at 838 n.6).

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plaintiff did not allege “that the state was involved in the

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contested employment actions, or that it showed any interest in

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the school’s personnel matters,” the Ninth Circuit concluded that

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the plaintiff had failed to allege state action.

8

(citations and internal quotation marks omitted).

9

Id. at 817-18

Because the

Id. at 818

Like the plaintiff in George, plaintiff’s allegations

10

establish only that he suffered a “contractor-initiated

11

termination” involving CCA’s “day-to-day management” of its

12

employees.

13

plaintiff’s termination involved personnel decisions that “were

14

made by concededly private parties [] and turned on judgments

15

made by private parties without standards established by the

16

State.”

17

Sullivan, 526 U.S. 40, 53 (1999)).

18

plaintiff has not satisfied either the public function or

19

pervasive entwinement tests, and has not alleged any other facts

20

showing that his termination was “fairly attributable to the

21

State,” Lugar, 457 U.S. at 937, the court must grant defendants’

22

motion to dismiss this claim.6

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B.

24

91 F.3d at 1231.

And like the plaintiff in Caviness,

590 F.3d at 818 (citing Am. Mfrs. Mut. Ins. Co. v.
Accordingly, because

Idaho Protection of Public Employees Act
The Idaho Protection of Public Employees Act (“IPPEA”)

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6

Because plaintiff has failed to allege that CCA acted
under color of state law, and has alleged no facts showing that
Myers acted under color of state law independently of his
involvement in plaintiff’s termination, plaintiff also fails to
state a cognizable claim under § 1983 against Myers.
12

1

provides “a legal cause of action for public employees who

2

experience adverse action from their employer as a result of

3

reporting waste and violations of a law, rule, or regulation.”

4

I.C. § 6-2101.

5

“employer,” which the statute defines as “the state of Idaho,”

6

I.C. § 6-2103(4)(a), “any political subdivision or governmental

7

entity eligible to participate in the public employees retirement

8

system,” or the “agent of an employer,” I.C. § 6-2103(4)(b).

9

The IPPEA applies to conduct by a public

Although CCA is plainly not the State of Idaho or a

10

governmental entity, plaintiff alleges that CCA is liable under

11

the IPPEA because “it is an agent of the State of Idaho.”

12

(Compl. ¶ 121.)

13

principal confers authority upon the agent to act for the

14

principal.”

15

essential element of agency is the principal’s right to control

16

the agent’s actions.”

17

comment (f)(1); accord Sharp v. W.H. Moore, Inc., 118 Idaho 297,

18

303 (1990) (“[A]n agency relationship is created where one who

19

hires another has retained a contractual right to control the

20

other’s manner of performance.” (citations omitted)).

21

actions may only be attributed to the principal if those actions

22

were taken “within the course and scope of authority delegated by

23

the principal.”

24

“Agency is a fiduciary relationship in which the

Gissel v. State, 111 Idaho 725, 728 (1986).

“[A]n

Restatement (Third) of Agency § 1.01,

An agent’s

Bailey v. Ness, 109 Idaho 495, 497 (1985).

Here, plaintiff has alleged that the Idaho Department

25

of Corrections (“IDOC”) “retain[s] clear supervisory and

26

monitoring power over CCA’s operation and management of the ICC,”

27

(Compl. ¶ 8), and that CCA “act[ed] under the supervision of the

28

Idaho Department of Corrections” at all times, (id. ¶ 122).
13

1

Although these allegations may establish an agency relationship

2

with respect to CCA’s management of the ICC, they do not

3

establish that the IDOC retained any right of control with

4

respect to CCA’s employment decisions.

5

Plaintiff also alleges that the IDOC required CCA “to

6

only employ persons who satisfy the Idaho Board of Correction’s

7

personnel policies,” (Compl. ¶ 9), and that IDOC required CCA to

8

hire “sufficient qualified personnel to implement the terms of

9

the contract,” (id. ¶ 15).

Even if plaintiff is correct that the

10

IDOC set guidelines for whom CCA could hire, it does not follow

11

that it set guidelines for whom CCA could fire.

12

no allegations indicating that he was terminated at the IDOC’s

13

direction or pursuant to any guidelines set forth by the IDOC;

14

rather, his allegations establish that CCA exercised its

15

discretion to terminate his employment after conducting its own

16

internal investigation.

17

Plaintiff offers

(See Compl. ¶¶ 90-100.)

Because plaintiff has not alleged any facts showing

18

that IDOC “has any right to control [or] did control” the firing

19

of plaintiff or other ICC employees, he has not stated a claim

20

that CCA was acting within the scope of an agency relationship

21

with IDOC when it terminated him.

22

Care, Inc., Civ. No. 89-9025 RJB, 1992 WL 7033, at *3 (E.D. Pa.

23

Jan. 6, 1992) (holding that contractor did not act as an “agent”

24

under Pennsylvania whistleblower statute when it terminated the

25

plaintiff because the principal, a state hospital, “had the right

26

to assert control over the medical and clinical affairs of the

27

cancer care center but did not have the right to control the . .

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. firing of [defendant’s] employees”).
14

See Cohen v. Salick Health

Accordingly, because

1

plaintiff has not alleged that CCA’s termination of his

2

employment occurred “within the course and scope” of its agency

3

relationship with IDOC, Bailey, 109 Idaho at 497, the court must

4

grant defendants’ motion to dismiss plaintiff’s IPPEA claim.

5
6

C.

Termination in Violation of Public Policy
Although Idaho law generally permits an employer to

7

terminate an at-will employee for any reason or for no reason, it

8

“recognizes a narrow exception to the at-will employment

9

presumption when the employer’s motivation for the termination

10

contravenes public policy.”

11

Co-Op., Inc., 152 Idaho 632, 640 (2012) (citing Van v. Portneuf

12

Med. Ctr., 147 Idaho 552, 561 (2009)).

13

exception is triggered only where an employee is terminated for

14

engaging in some protected activity, which includes (1) refusing

15

to commit an unlawful act, (2) performing an important public

16

obligation, or (3) exercising certain rights and privileges.”

17

Bollinger, 152 Idaho at 640; see also Orloff v. United Parcel

18

Serv., 490 Fed. App’x 38, 39 (9th Cir. 2012) (“[T]he Idaho

19

Supreme Court has made clear that the initial trigger for the

20

exception is the protectable action by the employee whose

21

employment was adversely affected, not the bad motivation of the

22

employer.” (citation omitted)).

23

be “rooted in case law or statutory language.”

24

Idaho at 640. (quoting Edmondson v. Shearer Lumber Prods., 139

25

Idaho 173, 177 (2003)) (internal quotation marks omitted).

26

Bollinger v. Fall River Rural Elec.

“This public policy

The public policy at issue must
Bollinger, 152

Here, plaintiff alleges that he was terminated because

27

he performed the “important public function” of informing his

28

superiors that staffing levels at ICC were inadequate.
15

(Compl. ¶

1

133.)

2

staffing levels at the ICC not only violated the terms of its

3

contract with the IDOC and the terms of a settlement agreement

4

requiring CCA to maintain adequate staffing levels, (see id.),

5

but also violated Idaho Code sections 20-209 and 20-241A, which

6

set forth specific standards that private prisons in Idaho must

7

comply with and incorporate by reference additional standards set

8

by the IDOC, (see Pl.’s Opp’n at 20).

Plaintiff contends that CCA’s failure to maintain adequate

9

The facts alleged here are distinct from those in

10

Bollinger, in which the court held that a plaintiff who was

11

allegedly fired after reporting safety violations to her employer

12

could not prevail on her public policy claim.

13

42.

14

plaintiff “fail[ed] to pinpoint any particular statute or

15

regulation that would support her claim that her reports of

16

safety issues implicated a public policy sufficient to justify an

17

exception to at-will employment.”

18

the plaintiff in Bollinger, has “identif[ied] a legal source for

19

those alleged rules and regulations” that he believed were

20

implicated by the ICC’s alleged failure to maintain adequate

21

staffing.

22

138 Idaho 200, 208 (2002) (holding that a physician who was

23

allegedly terminated for reporting falsified medical records

24

could state a public policy claim because the conduct that

25

plaintiff reported “is unlawful and involves the health and

26

welfare of the public”).

27
28

152 Idaho at 641-

There, the court reached this conclusion because the

Id. at 641.

Plaintiff, unlike

Id.; see also Thomas v. Med. Ctr. Physicians, P.A.,

Because plaintiff has alleged that his concerns about
inadequate staffing were grounded in specific provisions of Idaho
16

1

statutory law and that he was terminated for voicing these

2

concerns, he has sufficiently alleged that his termination

3

violated public policy.

4

Accordingly, the court must deny defendants’ motion to dismiss

5

this claim.

6

D.

7

See Bollinger, 152 Idaho at 640.

Intentional Infliction of Emotional Distress
“In Idaho, four elements are necessary to establish a

8

claim of intentional infliction of emotional distress: (1) the

9

conduct must be intentional or reckless; (2) the conduct must be

10

extreme and outrageous; (3) there must be a causal connection

11

between the wrongful conduct and the emotional distress; and (4)

12

the emotional distress must be severe.”

13

179 (citing Curtis, 123 Idaho at 601 (1993)).

14

Edmondson, 139 Idaho at

Defendants contend only that plaintiff has failed to

15

allege extreme or outrageous conduct.

(Defs.’ Mem. at 19 (Docket

16

No. 10).)

17

requires that the conduct at issue be “atrocious” and “beyond all

18

possible bounds of decency.”

19

“reasonable men [sic] may differ” on whether the defendant’s

20

conduct was extreme or outrageous, the court must permit the jury

21

to decide that question.

22

of Torts § 46, comment h).

In order to be “extreme or outrageous,” Idaho law

Edmondson, 139 Idaho at 180.

If

Id. at 180 (citing Restatement (Second)

23

Ordinarily, termination from employment, without more,

24

is not extreme or outrageous enough to support a claim for IIED.

25

In Edmondson, for instance, the Idaho Supreme Court held that a

26

lumber-mill employee who was fired for his association with an

27

environmental group could not prevail on an IIED claim, even

28

though he alleged that the defendant “abuse[d] its power” by
17

1

firing him and knew of his “susceptibility to emotional

2

distress.”

3

139 Idaho at 180.

Here, however, plaintiff alleges that the retaliatory

4

nature of his termination and the disclosure of his firing

5

“within the relatively small community of corrections

6

professionals in Idaho” made his termination extreme and

7

outrageous.

8

litigation, the court cannot determine that reasonable minds

9

would not differ on whether defendants’ conduct was extreme and

(Compl. ¶¶ 104, 106, 115.)

At this stage in the

10

outrageous.

11

the cases cited by defendants suggest that defendants’ conduct

12

was not sufficiently extreme or outrageous, those cases reached

13

that conclusion on summary judgment after discovery had yielded a

14

more accurate picture of the facts.

15

Bollinger, 152 Idaho at 643.

16

defendants’ motion to dismiss this claim.

17
18

E.

See Edmondson, 139 Idaho at 180.

To the extent that

See id. at 179-80;

Accordingly, the court must deny

Negligent Infliction of Emotional Distress
“There are five elements to a claim for negligent

19

infliction of emotional distress in Idaho: (1) the existence of a

20

duty; (2) a breach of that duty; (3) proximate cause; (4)

21

damages; and (5) physical manifestation of the injury.”

22

v. Elmore County, 903 F. Supp. 2d 1067, 1075 (D. Idaho 2012)

23

(Bush, M.J.) (citing Czaplicki v. Gooding Joint Sch. Dist. No.

24

231, 116 Idaho 326 (1989)).

25

not a required element of an action for negligent infliction of

26

emotional distress.”

27

(Idaho Ct. App. 2009).

28

Sommer

“Extreme and outrageous conduct is

Johnson v. McPhee, 147 Idaho 455, 465

Under Idaho law, “the mere termination of an at-will
18

1

employee--without more--does not constitute the breach of a duty

2

sufficient to support an NIED claim.”

3

643.

4

claim simply because his termination violated the employer’s duty

5

of good faith and fair dealing.

6

Defendants therefore contend that because plaintiff was an at-

7

will employee, he cannot assert a claim for NIED.

8

at 20.)

Bollinger, 152 Idaho at

Nor may a terminated at-will employee prevail on an NIED

9

Sommer, 903 F. Supp. 2d at 1077.

(Defs.’ Mem.

Although plaintiff was an at-will employee, he alleges

10

that defendants breached their duty “to ensure that [their]

11

employees were not being terminated in violation of public

12

policy.”

13

held that an employee who is terminated in violation of public

14

policy may bring an NIED claim, one Idaho Supreme Court decision,

15

Sorensen v. Saint Alphonsus Regional Medical Center, Inc., 141

16

Idaho 754, 761 (2005), suggests that plaintiff has stated a

17

viable claim.

18

terminated from her employment could not bring an NIED claim

19

because “she was an employee at will who could be terminated at

20

any time with or without cause absent a violation of public

21

policy,” and that “[n]o violation of public policy is implicated

22

in this case.”

23

adopted a materially identical rule with respect to whether an

24

employer has a duty of care, has also held that an at-will

25

employee is barred from bringing an NIED claim “absent a

26

statutory or public policy mandate.”

27

of E. Wash., 145 Wash. 2d 233, 244 (2001) (en banc) (citation

28

omitted).

(Compl. ¶ 162.)

Although no Idaho court has expressly

There, the court held that a plaintiff who was

Id.

The Supreme Court of Washington, which has

19

Snyder v. Med. Serv. Corp.

1

In holding that the plaintiff’s claims in Sorensen were

2

barred “absent a violation of public policy,” 141 Idaho at 761,

3

the Idaho Supreme Court seems to imply that it would recognize a

4

claim for NIED if the plaintiff were terminated in violation of

5

public policy.

6

871 (9th Cir. 2011) (“[W]here the state’s highest court has not

7

decided an issue, the task of the federal courts is to predict

8

how the state high court would resolve it.” (citations and

9

internal quotation marks omitted)).

See Hayes v. County of San Diego, 658 F.3d 867,

Accordingly, because

10

plaintiff has alleged that defendants breached a duty of care by

11

terminating him in violation of public policy, the court must

12

deny defendants’ motion to dismiss this claim.

13

IT IS THEREFORE ORDERED that defendants’ motion to

14

dismiss be, and the same hereby is, GRANTED with respect to

15

plaintiff’s claims under 42 U.S.C. § 1983 and the Idaho

16

Protection of Public Employees Act, I.C. § 6-2101 et seq., and

17

DENIED in all other respects.

18

Plaintiff has twenty days from the date this Order is

19

signed to file an amended complaint, if he can do so consistent

20

with this Order.

21

Dated:

March 17, 2014

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