Phelps v. City of Parma et al
MEMORANDUM DECISION AND ORDER granting 22 Motion for Summary Judgment. This case is dismissed with prejudice. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TERESA L. PHELPS, an individual,
Case No. 1:14-CV-0085-EJL-REB
CITY OF PARMA, Idaho; CRAIG
TELFORD, individually and as Mayor of
the City of Parma; ALBERT
ERICKSON, individually and as Chief of
Police, City of Parma; NATHAN
LEIGH, individually and as Council
Member, City of Parma; ONEY EGUIA,
individually and as Council Member,
City of Parma; ANGIE LEE, individually
and as Council Member, City of Parma;
TOM SMITH, individually and as
Council Member, City of Parma.
This matter is before the Court on Defendants’ Motion for Summary Judgment
(Dkt. 22). The parties have submitted their briefing on the motion and the matter is now
ripe for the Court’s review. Having fully reviewed the record herein, the Court finds the
facts and legal arguments are adequately presented in the briefs and record. Accordingly,
in the interest of avoiding further delay, and because the Court conclusively finds that the
decisional process would not be significantly aided by oral argument, the motion shall be
decided on the record before this Court without oral argument.
Plaintiff Teresa Phelps (“Ms. Phelps”) was employed as a City Clerk by
Defendant City of Parma (the “City”) for twenty-two years. Each year throughout her
twenty-two years as City Clerk, Ms. Phelps was reappointed for a one-year term through
nomination by the Mayor and approval by the City Council. Ms. Phelps’ one-year
appointment for 2013 expired in January, 2014. At that time, a new mayor, Bob Flowers
(“Mayor Flowers”), had just taken office. Although Mayor Flowers nominated Ms.
Phelps for appointment at the January 14, 2014 City Council meeting, a majority of the
City Council voted against Ms. Phelps’ reappointment.2
As City Clerk, Ms. Phelps’ duties included preparing monthly payroll and
preparing all monthly, quarterly and annual payroll reports. At some point in late 2012,
while she was processing the W-2 tax forms for city employees, Ms. Phelps discovered
that the City had employed more than four police officers for most of the year. Ms.
Phelps was concerned because the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq.
(“FLSA”), requires law enforcement to be paid time-and-a-half wages on overtime,
instead of straight time, when more than four police officers are employed.3 Ms. Phelps
Unless otherwise noted, the following facts are undisputed.
City Council member defendants Nathan Leigh, Oney Eguia, Angie Lee and
Tom Smith each voted against Ms. Phelps’ appointment. The remaining two City
Council members, Keith Vickers and Jim Smith, voted in favor of her appointment.
Under § 213(a)(20) of the FLSA, a law enforcement agency is exempt from the
FLSA’s minimum and maximum hour requirements if it “employs during the workweek
less than 5 employees[.]”
was also troubled that the City was calculating vacation and sick leave hours to count
towards overtime, and believed paying police department employees overtime in addition
to their salary violated the FLSA.
Ms. Phelps reported the suspected violations to then Mayor Craig Telford (“Mayor
Telford”). Mayor Telford instructed Ms. Phelps to convert police department employees’
salaries to an hourly rate and to pay overtime hours as set by the FLSA. Ms. Phelps
contacted the City Auditor and the Department of Labor to confirm the correct method to
use to convert non-exempt salary to non-exempt hourly. Ms. Phelps also contacted the
City Attorney regarding the payment of holiday pay, and was directed to change the
practice so holiday and sick leave were not calculated towards overtime pay.4 The City
Attorney also instructed Ms. Phelps to begin paying police officers time-and-a-half
overtime, which she had not previously paid, and to compensate them for accrued
overtime which had not previously been paid. Ms. Phelps initially refused to pay police
officers for the previously accrued overtime, but ultimately complied after being directed
to do so during an executive session of the City Council.5 All of the issues about the
Initially, the Mayor and the City Council approved the practice of paying eight
extra hours for each holiday. This practice was discontinued after further investigation
by the City Attorney.
There was an additional issue regarding the calculation of the pay rate by which
the police department received their overtime wages. Prior to 2013, when the police
officers received only straight pay, their pay was calculated at a rate of 160 hours per pay
period. However, because the FLSA exemption allows police officers to work at straight
pay until 171 hours per pay period, and then to receive overtime pay above 171 hours,
Ms. Phelps divided the officers’ annual wages by the 171 hour pay period, instead of 160
hours, when she began paying them overtime in early 2013. This led to an artificial
police payroll and purported FLSA violations were resolved by April 2013. (Dkt. 26-5,
Phelps Depo., p. 26, p. 95.)
After the extra holiday/leave pay was discontinued, various police officers raised
informal complaints about no longer receiving that pay. In an executive session on June
14, 2013, Chief of Police Albert Erickson (“Chief Erickson”) complained to the City
Council about the police department’s decrease in pay. During that meeting, Chief
Erickson stated Ms. Phelps did not understand the FLSA, had incorrectly calculated
several officers’ checks, had a negative attitude, and had caused many problems between
City employees by, among other things, bad-mouthing Mayor Telford and others.6 Chief
Erickson presented a memo detailing the aforementioned complaints against Ms. Phelps.
(Dkt. 1, Exhibit A.) In the memo, Chief Erickson questioned “the veracity of the figures”
decrease in their pay rate. Based on this decrease, the police department complained, and
after further review with the City Attorney, Mayor Telford told Ms. Phelps to calculate
the officers’ hourly rate at the 160 hour pay period. Ms. Phelps doubted this was the
correct calculation, and initially refused pay the police department in the manner directed
by Mayor Telford. She later complied after she was directed to do so by the City
Chief Erickson also complained to the City Council about a separate, Idaho
Department of Transportation (“IDT”) grant issue he perceived to have been caused by
Ms. Phelps’ failings in May, 2013. During an open session of the City Council in May
2013, Chief Erickson blamed Ms. Phelps for the loss of salary reimbursements from an
IDT grant he had applied for in August 2012. (Dkt. 26-3, Exhibit N, Parma Police
Department Monthly Report) (stating “[d]ue to an inability or unwillingness on the part
of our payroll department to give the State the figures they need we’ve lost
reimbursement on those mobilizations, totaling $3200.00 the City missed out on.”) The
parties dispute both whether Ms. Phelps was responsible for the loss of the IDT grant and
whether the grant issue is relevant to this case.
Ms. Phelps used to calculate payroll, and made many inflammatory comments about her
conduct. (Id., p. 5.) The memo was given to Mayor Telford, City Council members, the
City attorney, and Ms. Phelps. All in attendance at the executive session left with a copy
of the memo.
Several months later, on October 9, 2013, Mayor Telford and the City Attorney
met with Ms. Phelps and advised her that she would not receive a raise. Ms. Phelps
contends Mayor Telford told her she was not receiving a raise because of the police
department payroll issue. However, Mayor Telford set forth the purported reasons for the
denial of Ms. Phelps’ raise in a disciplinary letter. During the October 9, 2013 meeting,
Ms. Phelps read and refused to sign the letter, stating it contained false accusations.
Although the City Attorney tore the letter up and represented it would not be placed in
Ms. Phelps file, Defendants produced a copy of the letter during Ms. Phelps’ deposition.
(Dkt. 26-1, p. 10, n. 1; Dkt. 22-5.) Other than a vague reference to recent disagreement
between himself and Ms. Phelps regarding the law, Mayor Telford’s disciplinary letter
did not mention either the payroll issue or any of Chief Erickson’s complaints with Ms.
Mayor Telford was defeated in the November, 2013 election by Mayor Flowers.
At the City Council meeting on January 13, 2014, Mayor Flowers was sworn in and made
Specifically, the letter states, “[w]hile we both may not agree on an approach to a
city matter or the interpretation of the law, Ms. Phelps needs to address the issue in a
productive manner, researching the issue to provide the best information and work with
me to talk to other persons who may have the answers or be affected by the issue to reach
the best solution.” (Id.)
his selections for the appointed positions for the city. Both Ms. Phelps and the prior City
Building Inspector were rejected by a majority vote of the City Council. Ms. Phelps
believed her employment as City Clerk was terminated as retaliation for complying with
the FLSA, and filed the instant suit. Since she was denied reappointment in January,
2014, Ms. Phelps has applied, but been rejected, for a number of city clerk or similar
STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules of
Civil Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.
The Supreme Court has made it clear that under Rule 56 summary judgment is
mandated if the non-moving party fails to make a showing sufficient to establish the
existence of an element which is essential to the non-moving party’s case and upon which
the non-moving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). If the non-moving party fails to make such a showing on any
essential element, “there can be no ‘genuine issue of material fact,’ since a complete
failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id. at 323.8
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of
summary judgment, must be both “material” and “genuine.” An issue is “material” if it
affects the outcome of the litigation. An issue, before it may be considered “genuine,”
must be established by “sufficient evidence supporting the claimed factual dispute . . . to
require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat’l Bank v. Cities
Serv. Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See,
e.g., British Motor Car Distrib. v. San Francisco Automotive Indus. Welfare Fund, 883
F.2d 371 (9th Cir. 1989). According to the Ninth Circuit, in order to withstand a motion
for summary judgment, a party:
(1) must make a showing sufficient to establish a genuine issue of fact with respect
to any element for which it bears the burden of proof; (2) must show that there is
an issue that may reasonably be resolved in favor of either party; and (3) must
come forward with more persuasive evidence than would otherwise be necessary
when the factual context makes the non-moving party’s claim implausible.
Id. at 374 (citation omitted).
See also, Rule 56(3) which provides, in part:
When a motion for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of the
adverse party=s pleadings, but the adverse party=s response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that is a
genuine issue for trial. If the adverse party does not so respond, summary
judgment, if appropriate, shall be entered against the adverse party.
Of course, when applying the above standard, the court must view all of the
evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby
Inc., 477 U.S. 242, 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir.
Ms. Phelps brings three causes of action against the City, Mayor Telford, Chief
Erickson and City Council members Nathan Leigh (“Leigh”), Oney Eguia (“Euigia”),
Angie Lee (“Lee”) and Tom Smith (“Smith”) (collectively referred to hereinafter as
“Defendants”). Each of the individual defendants are sued both in their official and
individual capacities. Defendants seek summary judgment on each of Ms. Phelps’
A. 42 U.S.C. § 1983
Congress has created a cause of action against individuals who, while acting under
color of law, violate the constitutional rights of private citizens. Section 1983 provides,
in pertinent part:
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 or other person within the jurisdiction thereof to the deprivations of any
rights, privileges or immunities secured by the Constitution and laws, shall be
liable to the party injured[.]
42 U.S.C. § 1983.
“Section 1983 does not create any substantive rights, but is instead a vehicle by
which plaintiffs can bring federal constitutional and statutory challenges to actions by
state and local officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006)
(citing Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 978 (9th Cir. 2004)). “The
purpose of § 1983 is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights.” Id. (citation omitted).
To establish a prima facie case under 42 U.S.C. § 1983, a plaintiff “must adduce
proof of two elements: (1) the action occurred ‘under color of law’ and (2) the action
resulted in a deprivation of a constitutional right or a federal statutory right.” Souders v.
Lucero, 196 F.3d 1040, 1043 (9th Cir.1999) (quoting Parratt v. Taylor, 451 U.S. 527,
535 (1981)). Paragraphs 7-13 of the complaint allege that Defendants acted under color
of state law. Paragraphs 62-72 allege Defendants’ actions deprived Ms. Phelps of her
Fourteenth Amendment due process rights. “The procedural due process guarantees of
the Fourteenth Amendment apply only when a constitutionally protected liberty or
property interest is at stake.” WMX Technologies, Inc. v. Miller, 80 F.3d 1315, 1318 (9th
Cir. 1996) (citing Board of Regents v. Roth, 408 U.S. 564, 569 (1972)).
In Paul v. Davis, 424 U.S. 693, 701 (1976), the Supreme Court held that the
infliction by state officials of a stigma to one’s reputation is not itself sufficient to invoke
the procedural protection of the Due Process Clause of the Fourteenth Amendment.
Instead, in addition to the stigma inflicted to one’s reputation, one must also allege the
distinct alteration or extinction of a previously recognized right or status. Id. at 711.
This has become known as the “stigma-plus” test. WMX Technologies, 80 F.3d at 1319.
Previously “recognized rights” attain constitutional status “by virtue of the fact that they
have initially recognized and been protected by state law.” Paul, 424 U.S. at 710. Stated
another way, property or liberty interests warranting constitutional protection are “not
created by the Constitution. Rather, they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as state law—
rules or understandings that secure certain benefits and that support claims of entitlement
to those benefits.” Roth, 408 U.S. at 577.
Ms. Phelps alleges Defendants infringed upon her liberty interests in her good
name and reputation, in continued and future employment, and right to a pay raise, when
they terminated her and made stigmatizing allegations regarding her job performance.
(Dkt. 1,¶¶ 62-73; Dkt. 26, pp. 8-9.) As a result of the purportedly false allegations made
by Chief Erickson in his May and June 2013 statements to the City Council, and by
Mayor Telford in his October 2013 disciplinary letter denying Ms. Phelps a pay raise,
Ms. Phelps claims a stigma has been placed on her professional reputation and that her
future employment opportunities within her chosen profession have been adversely
impacted and/or foreclosed. Defendants argue Ms. Phelps’ liberty interest claim fails
because she cannot establish extinction of a recognized right or status since she was never
terminated. Instead, Ms. Phelps’ term of appointment for the year of 2013 had already
ended prior to the City Council’s decision to reject Ms. Phelps’ appointment in 2014.
Ms. Phelps responds that she was improperly “terminated” due to the City
Council’s failure to follow the procedure specified in I.C. § 50-206. Ms. Phelps contends
her appointment was continuing and was not for a fixed term, and claims she expected to
continue in her position until retirement. (Dkt. 26, p. 7.) Because her term was
purportedly continuing, Ms. Phelps argues that the City had to follow the procedure
outlined in I.C. § 50-206 in order to remove her. Section 50-206 provides:
Any appointed officer . . . may be removed by the mayor for any cause by him
deemed sufficient; but such removal shall be by and with the affirmative vote of
one half (1/2) plus one (1) of the members of the full council; provided, that the
city council, by unanimous vote of all of its members, may upon their own
initiative remove any appointed officer.
Ms. Phelps suggests Defendants violated I.C. § 50-206 because Mayor Flowers
voted to appoint her and the City Council did not unanimously vote to remove her. (Dkt.
26, p. 7.) Because the City Council did not follow the procedures of I.C. § 50-206, Ms.
Phelps contends Defendants violated the procedural safeguards mandated by the Idaho
legislature and improperly removed or terminated her.
Defendants concede that Ms. Phelps was not removed pursuant to I.C. § 50-206.
However, Defendants contend they were not required to follow the § 50-206 procedure to
remove Ms. Phelps because she was not appointed at the time of the City Council’s vote.
Defendants distinguish between removal of an appointed officer, which requires
compliance with I.C. § 50-206, and failure to appoint (or reappoint) an officer, which
instead requires compliance with I.C. § 50-204. Section 50-204 of the Idaho Code
provides the mayor, “except as otherwise provided . . . with the consent of the council
shall appoint a city clerk . . . and such other officers as may be deemed necessary for the
efficient operation of the city.” I.C. § 50-204. At the time the City Council rejected Ms.
Phelps’ appointment, Mayor Flowers was newly elected. Although Mayor Flowers
nominated Ms. Phelps for appointment, the majority of the City Council did not approve
the appointment. Defendants argue Ms. Phelps was not “terminated” in violation of
Idaho statute because the City Council’s failure to appoint Ms. Phelps was permitted
under I.C. § 50-204. Further, Defendants note the Parma City Code indicates that the
City Clerk shall retain office “for the term of . . . appointment unless sooner removed.”
(Dkt. 22-14.) Section 50-205 of the Idaho Code also states that “appointive officers” are
appointed for a specific term, providing, “[w]henever a vacancy shall occur in an
appointive office, the vacancy for the unexpired term shall be filled by appointment in the
same manner as the original appointment. I.C. § 50-205 (emphasis added). Defendants
suggest Ms. Phelps was not terminated because her latest one-year term had already
ended when the City Council voted against her appointment.
The interpretation of a statute is a question of law over which the court exercises
free review. State v. Hart, 25 P.3d 850, 852 (Idaho 2001). The purpose of statutory
interpretation is to give effect to legislative intent. State v. Yzaguirre, 163 P.3d 1183,
1187 (Idaho 2007) (citing Robison v. Bateman–Hall Inc., 76 P.3d 951, 954 (Idaho 2003)).
The literal words of the statute provide the best guide to legislative intent; therefore, the
interpretation of a statute must begin with the literal words of the statute. Id. “In
determining the ordinary meaning of a statute ‘effect must be given to all the words of the
statute if possible, so that none will be void, superfluous, or redundant.’ ” State v.
Mercer, 138 P.3d 308, 309 (Idaho 2006) (quoting In re Winton Lumber Co., 63 P.2d 664,
666 (Idaho 1936)). Moreover, the Court must consider all sections of applicable statutes
together to determine the intent of the legislature. Davaz v. Priest River Glass Co., Inc.,
870 P.2d 1292, 1295 (Idaho 1994).
Here, the plain meaning of the relevant statutory provisions suggest I.C. § 50-206
did not apply to Ms. Phelps’ situation. First, as noted, I.C. § 50-205 expressly refers to a
“term” of office for appointed officers. Finding Ms. Phelps’ appointment was continuing
and not fixed would render § I.C. 50-205’s reference to a “term” of employment
meaningless. In addition, in Ms. Phelps’ case, because she was appointed by Mayor
Telford in January 2013 for a one-year term of appointment, it follows that Mayor
Telford, or the City Council by unanimous vote, had the authority to remove her during
this term under I.C. § 50-206 “if sooner desired.” However, once Mayor Telford’s term
ended, Mayor Flowers, as the newly elected mayor, could appoint his own city clerk
through I.C. § 50-204. This section gives the mayor the authority, with the consent of the
city council, to appoint a city clerk. Under Ms. Phelps’ reading of the statute, Mayor
Flowers would be without such authority because a previous mayor had already
appointed Ms. Phelps to a continuing position. This reading would render § 50-204 void
because Mayor Flowers would not have the authority to appoint a city clerk.
Moreover, Ms. Phelps admitted in her deposition both that she had been reappointed every year throughout her twenty-two years with the City, and that she
understood her latest appointment lasted only through January 2013. (Dkt. 26-5, Phelps
Depo., p. 5.) Ms. Phelps’ claim that her appointment was not for a fixed term is belied by
this admission. Finally, the Idaho Supreme Court has interpreted §§ 50-204 and 50-206
as “clear and unambiguous that appointive officers are at-will and subject to removal
without cause.” Boudreau v. City of Wendell, 213 P.3d 394, 397 (Idaho 2009).
Although, under Boudreau, an appointed officer may be removed without notice and a
hearing only where the mayor and the majority of the city council vote for removal, or
where the city council unanimously votes to remove the city clerk, this holding only
applies only to “appointive officers.” Id. (citing I.C. § 50-206). At the time the City
Council voted against Ms. Phelps’ appointment, her prior appointment for the 2013 year
had already ended and she did not have an “appointive” position to be removed from.
Thus, the City Council was not required to comply with § 50-206, and did not violate any
procedural safeguards set by the Idaho legislature in rejecting Ms. Phelps’ appointment. 9
Ms. Phelps suggests that her liberty interest was also implicated by Mayor
Telford’s failure to give her a raise in conjunction with this October 2013 disciplinary
letter. Ms. Phelps argues a “liberty interest is implicated by more than termination and
includes an alteration of a right or status such as employee’s range, pay or privileges” and
contends depriving her of a “raise based upon false, stigmatizing charges is an alteration
of status protected by due process.” (Dkt. 26, pp. 8-9) (citing Stiesberg v. California, 80
F.3d 353, 356 (9th Cir. 1996)). In Stiesberg, plaintiff highway patrol officer brought a
§ 1983 claim stating his transfer to a less desirable department deprived him of protected
liberty or property interests without due process of law. In conjunction with the transfer,
plaintiff alleged defendants damaged his reputation by accusing him of lying and
incompetence. Id. at 357. The Ninth Circuit rejected this claim, holding:
In the absence of any allegation or showing that he had a right not to be
transferred or subjected to petty annoyances on the job, and/or that the conduct
complained of amounted to a constructive demotion or discharge, Stiesberg’s
contention that the [defendants] failed to comply with the requisite administrative
steps prior to transferring him amounts to little more than a complaint that his
The Boudreau Court held a city cannot override legislative intent by devising its
own policies or procedures. Id. Here the City did not seek to override the statutory
language of § 50-206 but instead complied with § 50-204.
unilateral expectations were not met. Such unilateral expectation, without more,
does not involve any federally cognizable liberty or property interest.
Id. at 357 (citations omitted) (emphasis added).
Similarly, Ms. Phelps has not made any showing that she had a right to a raise. To
have a constitutionally protected property or liberty interest, “a person clearly must have
more than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth,
408 U.S. at 577. Even if Ms. Phelps anticipated a raise, any expectation was simply that,
and nothing more. Although perhaps a deduction in salary would constitute an alteration
in status sufficient to implicate a liberty interest, here Ms. Phelps’s pay was not reduced.
Instead, she was simply denied an increase in pay.10 Ms. Phelps has not identified any
state statute that could support her entitlement to a raise.
Nor has Ms. Phelps identified any independent source to establish either that she
was entitled to a raise or that the failure to give her a raise was outside of Mayor
Telford’s discretion as her supervisor. The only evidence Ms. Phelps offers to suggest
she was entitled to a raise is the fact that she had “prior stellar performance reviews.”
(Dkt 26, p. 9.) Ms. Phelps included performance reviews for 2010, 2011 and 2012 with
Ms. Phelps cites Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773 (9th Cir.
1982) in support of her claim that a liberty interest is implicated if a public statement
impairing an employee’s reputation for honesty or morality is made in connection with
the alteration of some right or status recognized by state law. (Dkt. 26, p. 8.) In Vanelli,
the Ninth Circuit determined plaintiff teacher’s liberty interest was implicated when he
was dismissed mid-year for “immoral conduct.” Unlike Ms. Phelps, plaintiff in Vanelli
had a property interest in his continued employment and was terminated. “Under these
principals,” plaintiff’s dismissal implicated a protectable liberty interest. Id. at 778.
her opposition to Defendants’ Motion for Summary Judgment. The Court notes such
reviews are not necessarily “stellar,” as Ms. Phelps was frequently rated “satisfactory,” as
opposed to “exceed expectations” or “significantly exceeds expectations,” and had
several negative comments such as “does not handle stress well at times,” “stop yelling,”
“tends to holler and yell instead of just talking out problems,” and “sometimes grumpy
when not necessary.” (Dkt. 26-3, Exhibit S). Regardless, even if her evaluations are
considered “stellar,” Ms. Phelps has not provided any evidence or argument to establish
she was entitled to a raise as a result of such evaluations. As such, Mayor Telford’s
refusal to award Ms. Phelps a salary increase in 2013 did not cause a change in Ms.
Phelps’ rights or status sufficient to trigger Fourteenth Amendment protection. Davis,
424 U.S. at 711.
Due process is implicated when, in connection with termination or alteration of
status, a public employer makes a charge that may seriously damage the employee’s
standing and association in the community, or impose a stigma foreclosing other
employment opportunities.11 Campanelli v. Bockrath, 100 F.3d 1476, 1478 (9th Cir.
1996). To establish such a stigma, the employee must show (1) a stigmatizing statement
that seriously damages a person’s reputation or significantly forecloses his freedom to
take advantage of other employment opportunities; (2) that the stigmatizing statement
“In the specific context of terminations, ‘where a person’s good name,
reputation, honor or integrity is at stake because of what the government is doing to him,
notice and an opportunity to be heard are essential.’” Anderson v. Spaulding, 50 P.3d
1004 (Idaho 2002) (quoting Roth, 408 U.S. at 573).
was made with a temporal nexus to the course of termination; and (3) that the
stigmatizing statement was substantially false. Id. at 1479; see also Bollow v. Federal
Reserve Bank of San Francisco, 650 F.2d 1093, 1101 (9th Cir. 1981). Although Ms.
Phelps contends her ability to establish each of the aforementioned elements depends
upon disputed issues of material fact warranting denial of Defendants’ Motion for
Summary Judgment, the Court need not further address Ms. Phelps’ liberty interest claim
because she was not terminated and has not identified any law or facts to establish she
was entitled to a raise. As such, Ms. Phelps fails to meet the “stigma-plus” test because
she did not suffer a “‘distinct alteration or extinction’ of a previously recognized right to
add to [her] alleged stigmatization.” WMX Technologies, 80 F.3d at 1320 (quoting Paul,
424 U.S. at 711). Defendants are accordingly entitled to summary judgment on Ms.
Phelps’ § 1983 claim.
B. Violation of the FLSA
Ms. Phelps claims Defendants retaliated against her for notifying Mayor Telford
that the police department was being overpaid and that the payment of overtime violated
the FLSA. The FLSA anti-retaliation provision provides that it is unlawful:
[T]o discharge or in any other manner discriminate against any employee because
such employee has filed any complaint or instituted or cause to be instituted any
proceeding under or related to this chapter, or has testified or is about to testify in
any such proceeding, or has served or is about to serve on an industry committee.
29 U.S.C. § 215(a)(3).
The elements of a retaliation claim under the FLSA require a showing that a
plaintiff (1) engaged in activity protected under the FLSA, (2) suffered a materially
adverse employment action, and (3) a causal connection between the activity and the
adverse action. E.E.O.C. v. Luce, Forward, Hamilton & Scripps, 303 F.3d 994, 1004-05
(9th Cir. 2002). The burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), has been adapted and applied to cases under the FLSA. See, e.g.,
Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008) (citations omitted).
Under this framework, once a plaintiff makes a prima facie case of retaliation, the
defendant must then articulate a legitimate, non-retaliatory reason for its decision. Id. If
the defendant can articulate such reason, the burden then shifts to the plaintiff to
demonstrate the proffered reason is a pretext for retaliation. Id.
Here, Defendants admit a reasonable jury could find Mayor Telford’s failure to
give Ms. Phelps a raise in October 2013 was a materially adverse employment action
related to Ms. Phelps’ FLSA complaints due to Mayor Telford’s purported statement that
he denied Ms. Phelps a raise because of the problems with the police department and
payroll. (Dkt. 22-1, p. 14.) Although Defendants dispute that the raise issue was a
retaliatory action and argue it was rather a response to Ms. Phelps’ poor performance,
Defendants focus on Ms. Phelps’ inability to meet the first element of a prima facie
Defendants argue Ms. Phelps’ conduct was not “protected conduct” under the
FLSA because she never had to “step outside the role” of her employment and never
“[took] a position adverse to the employer.” (Dkt. 22-1, p. 12) (citing Hagan, 529 F.3d at
627). In Hagan, plaintiff field service manager (“Hagan”) was in charge of a small group
of technicians. 529 F.3d at 620. Hagan admitted that the calculation of his technicians’
overtime hours was part of his job as field service manager. When Hagan’s employer
changed the technicians’ schedule in a manner that would impact the amount of overtime
they could receive, Hagan voiced internal objections and concerns to management about
the possibility of field technicians receiving less overtime pay. The Fifth Circuit held
Hagan’s complaints did not constitute protected activity under the FLSA because Hagan
never had to “step outside his role” as a field manager, either to complain on behalf of the
technicians or to complain on his own behalf, about a supposed violation of the FLSA.
Id. at 625, 627 (citing McKenzie v. Renberg’s Inc., 94 F.3d 1478 (10th Cir. 1996)).
Moreover, voicing his technicians’ concerns was “not only not adverse to the company’s
interests, it is exactly what the company expects of a manager.” Hagan, 529 F.3d at 628
(emphasis in original).
Several circuits have held an employee does not engage in protected activity under
the FLSA unless that employee somehow steps outside his normal job role and takes an
action adverse to the employer. Id. at 627; see also McKenzie, 94 F.3d at 1486; ClaudioGotay v. Becton Dickinson Caribe, LTD, 375 F.3d 99 (1st Cir. 2004); Brush v. Sears
Holdings Corp., 466 Fed.Appx. 781 (11th Cir. 2012) (unpublished) (applying the rule in
a Title VII case); EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998) (same). In
McKenzie, the Tenth Circuit described this requirement as follows:
Despite our expansive interpretation of § 215(a)(3), we have never held that an
employee is insulated from retaliation for participating in activities which are
neither adverse to the company nor supportive of adverse rights under the statute
which are asserted against the company. . . . [I]t is the assertion of statutory rights
(i.e., the advocacy of rights) by taking some action adverse to the company—via
formal complaint, providing testimony in an FLSA proceeding, complaining to
superiors about inadequate pay, or otherwise—that is the hallmark of protective
activity under § 215(a)(3).
94 F.3d 1486.
The McKenzie Court held that plaintiff personnel director’s (“McKenzie”) act of
reporting her good faith concerns about the company’s wage and hour violations was not
sufficient to trigger the protections of § 215(a)(3) because McKenzie was not asserting
any rights under the FLSA but rather was performing her duties as personnel director for
the company. Id. In so holding, the Court explained:
Here, McKenzie never crossed the line from being an employee merely
performing her job as personnel director to an employee lodging a personal
complaint about the wage and hour practices of her employer and asserting a right
adverse to the company. McKenzie did not initiate a FLSA claim against the
company on her own behalf or on behalf of anyone else. Rather, in her capacity as
personnel manager, she informed the company that it was at risk of claims that
might be instituted by others as a result of its alleged FLSA violations. In order to
engage in protected activity under § 215(a)(3), the employee must step outside his
or her role of representing the company and either file (or threaten to file) an
action adverse to the employer, actively assist other employees in asserting FLSA
rights, or otherwise engage in activities that reasonably could be perceived as
directed towards the assertion of rights protected by the FLSA. Here, McKenzie
did none of these things. Indeed, McKenzie testified that her job responsibilities
included participating in wage and hour issues. . . . McKenzie therefore lacks an
essential ingredient of a retaliation claim; that is, she did not take a position
adverse to her employer or assert any rights under the FLSA. Accordingly,
McKenzie did not engage in activity protected under § 215(a)(3)[.]
Id. at 1486-87 (emphasis in original).
Defendants argue Ms. Phelps similarly never crossed the line from an employee
merely performing her job as City Clerk to an employee lodging a personal complaint
about the wage and hour practices of the City and asserting a right adverse to the City.
Defendants suggest Ms. Phelps, as City Clerk, had the responsibility to verify that payroll
was executed pursuant to applicable law. (Dkt. 22-1, p. 13) (citing Ms. Phelps’
deposition testimony stating she was in charge of reviewing and approving all payments
made by the City, including overseeing payroll). Defendants contend Ms. Phelps learned
she had been inaccurately calculating police department overtime and reported this to
Mayor Telford as a part of her job duties. (Id.) Defendants note Mayor Telford and the
City Attorney then investigated the situation and specifically told Ms. Phelps to correct
her prior errors and pay the police officers in accordance with the FLSA. (Id.)
Ms. Phelps responds that the Ninth Circuit “has not addressed the issue of
‘…whether an employee must step outside his or her professional role and take a role
adverse to the employer in order to engage in protected activity under 215(a)(3).’” (Dkt.
26, p. 16) (quoting Stewart v. Masters Builders Ass’n of King Cnty., 736 F.Supp.2d 1291,
1298 (W.D. Wash. 2010)). Additionally, Ms. Phelps claims she does not admit or allege
that her role as City Clerk is to ensure compliance with the FLSA, and claims her role as
City Clerk was not to execute payroll according to applicable law, but was instead to
prepare payroll which the Mayor and other department heads then approved. (Id., pp. 1617.)
Although not mentioned by the parties, the Supreme Court established a “fair
notice” test for deciding whether an employee has “filed any complaint” under the antiretaliation provision of the FLSA in Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. 1 (2011). Under the “fair notice” test, to fall within the scope of the antiretaliation provision, a “complaint must be sufficiently clear and detailed for a reasonable
employer to understand it, in light of both content and context, as an assertion of rights
protected by the statute and a call for their protection.” Id. at 14. In establishing the “fair
notice” test, the Supreme Court noted that the FLSA, as a remedial statute, must be
interpreted broadly in favor of employees, but also that the FLSA seeks to establish an
enforcement system that is fair to employers. Id. at 13-14. Thus, the employer must have
fair notice that an employee is making a complaint that could subject the employer to a
later claim of retaliation. Id. at 15; see also Lambert v. Ackley, 180 F.3d 997, 1007 (9th
Cir. 1999) (“[N]ot all amorphous expressions of discontent related to wages and hours
constitute complaints filed within the meaning of § 215(a)(3).”).
Two months after the briefing on Defendants’ Motion for Summary Judgment was
complete, the Ninth Circuit addressed whether the “stepping outside role” requirement of
Hagan, McKenzie, and other circuit cases applies in this circuit. In Rosenfield v.
GlobalTranz Enterprises, Inc., 811 F.3d 282, 287 (9th Cir. 2015), the Ninth Circuit held
the latter cases “correctly recognized both that a manager may, in some circumstances,
file a complaint under § 215(a)(3) and that an employee’s managerial position is an
important contextual element that must be considered when assessing whether the
employee has filed a complaint.” Id. (citing Hagan, 529 F.3d at 627-28; Claudio-Gotay,
375 F.3d at 102; McKenzie, 94 F.3d at 1486-87). While noting the rule of such cases and
the “fair notice” rule of Kasten “are likely consistent,” the Court found it “unnecessary to
weigh in definitively on that question.” Rosenfield, 811 F.3d at 287. Instead, the Court
adopted the “fair notice” rule of Kasten, explaining:
‘To fall within the scope of the antiretaliation provision, a complaint must be
sufficiently clear and detailed for a reasonable employer to understand it, in light
of both content and context, as an assertion of rights protected by the statute and a
call for their protection.’
The employee’s job title and responsibilities—in particular, whether he or she is a
manager—form an important part of that ‘context.’ Generally speaking, managers
are in a different position vis-à-vis the employer than are other employees because
. . . their employer expects them to voice work-related concerns and to suggest
changes in policy to their superiors. That may be particularly true with respect to
upper-level managers who are responsible for ensuring compliance with the
If an entry-level employee reported that someone is underpaid in violation of the
FLSA and requested that the employee be compensated in compliance with the
Act, a reasonable employer almost certainly would understand that report as a
‘complaint’ (depending, of course, on all the circumstances). But if the identical
report were made by a manager tasked with ensuring the company’s compliance
with the FLSA, a reasonable employer almost certainly would not understand that
report as a ‘complaint’ (again, depending on all the circumstances). Rather, the
employer naturally would understand the manager’s report as carrying out his or
her duties. In short, when determining whether an employee has ‘filed any
complaint,’ the employee’s role as a manager often is an important contextual
Id. at 286, 287 (citing Kasten, 563 U.S. at 14) (emphasis added).
The Ninth Circuit held that a fact issue existed as to whether the employee in
Rosenfield engaged in protected activity under the FLSA, and reversed the lower court’s
grant of summary judgment for defendant employer. In so holding, the Court noted that
plaintiff (“Rosenfield”) served as Manager or Director of Human Resources throughout
her tenure with defendant employer. Because a person with such titles “generally is
tasked with employment-related decisions, reports on a company’s compliance with
employment related statutes ordinarily would not put the employer on notice that the
manager was filing a complaint within the meaning of § 215(a)(3).” Id. at 288 (emphasis
added). However, Rosenfield “critically” provided evidence that ensuring compliance
with the FLSA was not her responsibility. Id. Rosenfield’s boss testified that he
“considered himself solely responsible for FLSA compliance” and “did not understand,
appreciate, or welcome [Rosenfield’s] bringing to his attention the FLSA violations.” Id.
Despite this arrangement, Rosenfield complained orally to management on at least eight
occasions that the company was not in compliance with the FLSA, provided copies of the
statute on some occasions, along with specific assertions concerning misclassification of
a large number of employees and requests for changes in in payment of wages for those
employees, and raised the subject of FLSA violations in at least twenty-seven weekly and
monthly reports to her superiors. Id. Although Rosenfield’s boss agreed to take some
actions aimed at addressing her FLSA complaint, he “made clear to [Rosenfield]…that he
did not want or expect [her] to determine whether the company was implementing” those
changes. Id. Rosenfield later discovered that the company was not implementing the
changes. She documented the company’s non-compliance with the FLSA and
complained again to her boss. She was fired five days later.
In light of the substantial evidence establishing ensuring FLSA compliance was
not a part of Rosenfield’s job, the Ninth Circuit held her “advocacy for the rights of
employees to be paid in accordance with the FLSA could not reasonably have been
understood…merely to be a part of [Rosenfield’s] regular duties.” Id. The Court
accordingly reversed summary judgment for employer, finding a genuine issue of
material fact existed as to whether Rosenfield’s reports of FLSA violations reached the
requisite degree of formality to constitute protected activity under the FLSA.
Here, by contrast, Ms. Phelps claims, without citation to the record, that ensuring
compliance with the FLSA was not a part of her role as City Clerk.12 (Dkt. 26, p. 16.)
While the Court must make all justifiable inferences in Ms. Phelps’ favor for purposes of
summary judgment, it need not credit mere assertions without any evidentiary support.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (to raise an issue for trial, the
nonmoving party must present more than a mere scintilla of evidence, and must come
forward with evidence sufficient to show that a reasonable jury could return a verdict in
its favor). Moreover, the evidence in the record overwhelmingly suggests that ensuring
compliance with the FLSA was a part of Ms. Phelps’ duty as City Clerk, that Ms. Phelps
and Mayor Telford both viewed her role as such, and that Ms. Phelps’ reports did not
constitute an assertion of rights protected by the statute.
For instance, Ms. Phelps was responsible for reviewing and approving all
payments made by the City, including that of overseeing payroll. (Dkt. 26-5, Phelps
Depo., p. 29, p. 30.) While calculating payroll, Ms. Phelps testified she “tried to follow
the law and do what was right and proper for the City.” (Id., p. 33.) When she noticed
the police department was employing more than four police officers but had not been
paying time-and-a-half overtime, and that sick and holiday leave hours had been counted
In support of this assertion, Ms. Phelps cites only to her Statement of Disputed
Facts, paragraph 1. This paragraph states “[a]s City Clerk/Treasurer. Ms. Phelps duties
included preparing monthly payroll, twice a month, preparing all monthly quarterly, and
annual payroll reports.” (Dkt. 26-1, ¶ 1.) Although this statement lists Ms. Phelps duties,
it says nothing about whether or not she was required to prepare payroll in compliance
with the law.
towards overtime, she reported the potential FLSA violations to Mayor Telford and to the
City Attorney in late 2012 or early 2013. (Id., pp. 21-22; pp. 28-29.)
With respect to the improper calculation of counting vacation and sick leave
towards overtime pay, the City Attorney directed Ms. Phelps to change the practice so
vacation and sick leave was not counted towards overtime pay, and the issue was
corrected. (Id., pp. 30-32.) Although Chief Erickson complained to the City Council
about the change in overtime pay, Ms. Phelps continued to pay the police officers without
the miscalculation for holiday pay, and was never directed to do otherwise by Mayor
Telford. (Id., p. 32-34.) With respect to the time-and-a-half overtime pay issue, Mayor
Telford and the City Attorney also instructed Ms. Phelps to begin paying the police
officers time-and-a-half, which she had previously not paid to them, and to compensate
them for recorded overtime that had not previously been paid. (Dkt. 22-3, ¶ 3.) Ms.
Phelps initially refused to compensate the police officers for the unpaid overtime they
were owed under the FLSA, but ultimately complied once she was directed to do so in an
executive session of the City Council. (Id.)
Defendants note Ms. Phelps’ initial refusal to comply with the FLSA by
reimbursing police officers for unpaid overtime could have exposed the City to an action
for liquidated damages for willful violation of the FLSA. (Dkt. 22-1, p. 14) (citing 29
U.S.C. § 260). Ironically, although she first identified the overtime violation, Ms. Phelps
then attempted to pay the police department less than they were owed under the FLSA by
initially refusing to compensate officers for their accrued overtime. In a typical FLSA
cases, a plaintiff advocates for unpaid wages or overtime on behalf of themselves or
others. Here, with respect to both the accrued overtime and use of a 171 hour pay period
instead of a 160 hour pay period, Ms. Phelps sought to pay the police department less
wages than what they were owed under the FLSA. Although she did so because she
mistakenly believed the changes requested by the Mayor and City Attorney violated the
FLSA, Ms. Phelps’ conduct illustrates her interests were clearly aligned with protecting
the City from liability, rather than its employees from underpayment. Moreover, once
Ms. Phelps raised the FLSA compliance issues to Mayor Telford and the City Attorney,
both issues were quickly resolved. Ms. Phelps testified in her deposition that all payroll
issues and purported FLSA violations were resolved by April, 2013. (Id., p. 26; p. 95.)
The circumstances in this case contrast sharply with those the Ninth Circuit found
created a genuine issue of material fact in Rosenfield. First, Mrs. Phelps was tasked with
preparing and approving payroll. Ensuring payroll complied with applicable law can be
presumed from this role. Ms. Phelps also demonstrated maintaining compliance was a
part of her position by reporting potential FLSA violations to Mayor Telford and the City
Attorney, and then initially refusing to implement changes the Mayor and the City
Attorney authorized because she believed the changes did not comply with the FLSA.
Ms. Phelps’ detailed notes from the time period also suggest preserving compliance was a
part of her position. See, e.g., (Dkt. 26-3, p. 15) (stating, “I was hired to fulfill my duties
as Clerk and Treasurer. My main objective has been to do my job the best I can,
following the laws and policies of the City and State.”) Because Ms. Phelps was tasked
with preparing payroll in accordance with the law, her reports regarding the City’s failure
to comply with the FLSA would not put Defendants on notice that Ms. Phelps was filing
a complaint within the meaning of § 215(a)(3). Instead, reporting compliance issues was
what Defendants expected of Ms. Phelps.
Moreover, unlike in Rosenfield, there is also no testimony in the record from any
of the defendants, let alone from Mayor Telford, Ms. Phelps’ boss, to suggest ensuring
compliance with the FLSA was not Ms. Phelps’ responsibility. Instead, FLSA violations
were corrected once Ms. Phelps reported them, illustrating Mayor Telford and the City
Attorney relied upon Ms. Phelps to safeguard compliance. Ms. Phelps did not have to
complain again about the violations, and all compliance issues were resolved by April
2013. Rather than being ignored and encouraged not to worry about compliance with the
FLSA, as was the employee in Rosenfield, Ms. Phelps’ complaints were immediately
responded to and resolved.
Ms. Phelps’ deposition testimony, notes and actions illustrate she was attempting
to protect the City and to ensure its compliance with the FLSA, and was not asserting
rights protected by the FLSA on her own or others’ behalf. Under such circumstances,
Defendants did not have fair notice that Ms. Phelps was making a complaint that could
subject them to a later claim of retaliation. Rosenfield, 811 F.3d at 288; see also
McKenzie, 94 F.3d at 1487 (“There is no evidence in the record to suggest that McKenzie
was asserting any rights under the FLSA…rather, the record reflects that McKenzie’s
actions in connection with the overtime pay issue were completely consistent with her
duties as personnel director for the company to evaluate wage and hour issues and to
assist the company in complying with its obligations under the FLSA.”). Ms. Phelps
FLSA accordingly fails to establish the first element of a prima facie FLSA retaliation
claim, that she engaged in a protected activity pursuant to § 215(a)(3).13
3. Whistleblower Act Violation
Ms. Phelps’ third claim is for violation of the Idaho Protection of Public
Employees Act (or “Whistleblower Act”), I.C. § 6-2101 et seq. The Whistleblower Act
“seeks to protect the integrity of the government ‘by providing a legal cause of action for
public employees who experience adverse action from their employer as a result of
reporting waste and violations of a law, rule or regulation.’” Patterson v. State Dept. of
Health & Welfare, 256 P.3d 718, 724 (Idaho 2011) (quoting Van v. Portneuf Med. Ctr.,
212 P.3d 982, 987 (Idaho 2009) (“Van I”).
To establish a prima facie case of retaliation under the Whistleblower Act, an
employee must show: (1) she was an employee who engaged or intended to engage in
protected activity; (2) her employer took adverse action against her; and (3) the existence
of a causal connection between the protected activity and the employer’s adverse action.
Van v. Portneuf Med. Ctr., 330 P.3d 1054, 1059 (Idaho 2014) (“Van II”) (quoting Van I,
212 P.3d at 988). Once an employee establishes a prima facie case for retaliation under
the Whistleblower Act, this Court has previously held the McDonnell Douglas burden-
Although the Ninth Circuit has held the issue of whether a complaint has been
filed that provides adequate notice to the employer is a question “to be resolved as a
matter of factual analysis on a case-by-case basis,” the Court, as detailed above,
concludes the undisputed facts establish Ms. Phelps did not file a complaint within the
meaning of § 215(a)(3). Rosenfield, 811 F.3d at 288.
shifting analysis applies at both the summary judgment and trial stage. Summers v. City
of McCall, 84 F.Supp.3d 1126, 1138 (D. Idaho 2015).
When the McDonnell Douglas analysis is applied to cases involving retaliation
under the Whistleblower Act: (1) the plaintiff must establish a prima facie case of
retaliatory conduct for an action protected by the relevant whistleblower statute; (2) once
the plaintiff demonstrates a prima facie case, the defendant is obligated to produce
evidence which, if taken as true, would permit the conclusion that there was a nonretaliatory reason for the adverse action; and (3) if the defendant articulates a legitimate
non-retaliatory reason for the action, then the burden shifts to the plaintiff to prove by a
preponderance of the evidence that the reason the defendant offers is a pretext for
retaliation. See Curlee v. Kootenai Cnty. Fire & Rescue, 224 P.3d 458, 463 (Idaho
2008); Summers, 84 F.Supp.3d at 1138.
Ms. Phelps alleges that she was a public employee who engaged in a protected
activity by reporting purported FLSA violations to Mayor Telford and the City Attorney.
Ms. Phelps claims Mayor Telford’s failure to give her a raise and the City Council’s vote
against reappointment were retaliatory actions connected with her protected activity, and,
therefore, in violation of the Whistleblower Act. Defendants deny Ms. Phelps engaged in
a protected activity and deny there is causal connection between her activity and the
adverse employment actions.
The scope of protected activity under the Whistleblower Act is broader than that
under the FLSA. Based on the plain language of § 6-2104, Ms. Phelps is protected from
communicating a violation or suspected violation of any state or federal law. By contrast,
the FLSA limits “protected activity” to a clear “assertion of rights protected by the
[FLSA] and a call for their protection.” Kasten, 563 U.S. at 9. Defendants acknowledge
Ms. Phelps’ reports of alleged FLSA violations would constitute a protected activity “if
this Court ignores the fact that they were caused by her own failure to recognize the
FLSA’s requirements in reviewing and preparing payroll.” (Dkt. 22-1, p. 18.) However,
under I.C. § 6-2104(1), “[a]n employer may not take adverse action against an employee
because the employee . . . communicates in good faith the existence of . . . a violation or
suspected violation of a law, rule or regulation adopted under the law of this state.” I.C.
§ 6-2104(1)(a). A communication is made in good faith “if there is a reasonable basis in
fact for the communication. Good faith is lacking where the employee knew or
reasonably ought to have known that the report is malicious, false or frivolous.” I.C. § 62104(1)(b). The statute does not provide an employee is precluded from making a claim
if their conduct caused the legal violation they later communicate, and Defendants have
not cited any cases to suggest otherwise.
Moreover, whether Ms. Phelps communicated purported FLSA violations in good
faith “is a question of fact, and summary judgment is appropriate only if, after viewing
the evidence in the light most favorable to [the non-moving party], reasonable minds
could only conclude that” the communication was malicious, false, or frivolous. Curlee,
224 P.3d at 467. Regardless of whether all of her complaints and actions were accurate,
the Court finds a reasonable jury could conclude Ms. Phelps acted in good faith due to
her belief the various overtime issues violated the FLSA. Ms. Phelps survives summary
judgment on the first element of Whistleblower Act claim. Id. at 458 (genuine issue of
material fact as to whether employee of county fire and rescue acted in “good faith” in
recording the allegedly wasteful activities of her coworkers precluded summary judgment
in favor of fire and rescue).
Under the Whistleblower Act, causation is generally an issue of fact to be decided
by a jury. The Idaho Supreme Court has held, as a general rule, “causation is an issue of
fact for the jury and only rarely can the issue be determined on a motion for summary
judgment.” Van I, 212 P.3d at 989. While Defendants claim there is no temporal
connection to causally link Ms. Phelps’ reports of purported FLSA violations and the
denial of her raise, Ms. Phelps testified Mayor Telford told her she did not receive a raise
because of the police department payroll problem. (Dkt. 26-5, Phelps Depo., pp. 95-96.)
Although Mayor Telford’s disciplinary letter detailing the reasons for denying Ms. Phelps
a raise suggests both the raise denial and her subsequent termination were not caused by
the payroll issue, but were instead due to a number of performance issues unrelated to the
FLSA, Ms. Phelps has established a genuine issue of material fact precluding summary
judgment with respect to causation under the Whistleblower Act. As such, the burden
shifts to Defendant to produce evidence of a non-retaliatory reason for the adverse
Mayor Telford’s October 2013 disciplinary letter provides a number of nonretaliatory reasons for the decision to deny Ms. Phelps a raise and subsequent vote
against Ms. Phelps’ appointment. The disciplinary letter lists multiple complaints with
Ms. Phelps’ performance, including:
“Ms. Phelps has increasingly been difficult to work with. Ms. Phelps needs to
treat me and others in a polite, professional manner and not interrupt, argue or yell
when she disagrees with whatever topic we are discussing.”
“I and several members of the City Council have received complaints that Ms.
Phelps is unapproachable by the public and City employees. Ms. Phelps needs to
treat people who come into City Hall or call with respect and kindness no matter
“More than one City Council member has informed me that they have had
negative encounters with Ms. Phelps and feel she gives preferential treatment to
one Council member over the others.”
“Ms. Phelps routinely complains about City contractors and employees, but when
I investigate her complaints, I find them to be minor or warrantless.”
“Ms. Phelps must refrain from making derogatory and/or insubordinate comments
regarding me, the City Council, City contractors, and City employees to persons
outside of City Hall as such action is counter to the personnel policy manual. Ms.
Phelps needs to create a positive atmosphere at City Hall instead of the combative,
negative one that exists. Ms. Phelps’ silent treatment must also stop.”
The aforementioned performance issues are corroborated by the deposition
testimony of the defendant City Council members. For instance, Smith testified that he
had been told by several City employees, including the Supervisor of City Employees and
one of his employees, as well as several police officers, that they avoided City Hall
whenever Ms. Phelps’ car was parked in front. (Dkt. 22-13, Smith Depo., pp. 14-15, pp.
22-25.) Smith said he had personally viewed Ms. Phelps “being moody.” (Id., p. 27.)
When pressed for an example, Smith stated “[a]s people came in to pay their—they pay
their water bills in there. She rolls her eyes if she has to get up from her desk and help
someone.” (Id., pp. 27-28.) Smith confirmed he also avoided paying his water bill if Ms.
Phelps was present because “[i]nterrupting [her] work would—you could tell that she—
you could tell how she felt about people coming in and having to get up and help them.”
(Id., p. 38.) Smith also recounted a conversation he had with Angie Mejia, Ms. Phelps’
assistant, when Mejia was crying and threatening to leave her position. When Smith
questioned her, Mejia stated “[t]hat sometimes [Ms. Phelps’] was so rude and mean to her
that she just couldn’t stand it anymore.” (Id., p. 33.) Mejia also claimed Ms. Phelps
“didn’t give her a raise one year because she was too nice to people who came in the
office.” (Id., pp. 33-34.) Smith confirmed with Mayor Telford that the latter statement
was true. (Id.)
Eguia testified he voted against Ms. Phelps’ reappointment because “of her
actions, complaints, things that were being said around town that I heard that were not
happy with—any time they had to deal with her, they weren’t happy.” (Dkt. 22-11,
Eguia Depo., p. 16.) When asked for a specific example of complaints he had heard
about Ms. Phelps, Eguia stated, “[s]he was just very difficult at times to work with, to
deal with from the constituents, whether it was a customer complaint and the way she
handled it…just the way [she] dealt with people.” (Id., pp. 17-18.)
Lee testified she voted against appointing Ms. Phelps because whenever “she was
asked to do things, she wouldn’t do them. For instance, we wanted to get the City to be
able—for the customers to be able to pay with a credit card, and with a card machine.
She said she wouldn’t do it. She refused to do a lot of things she was asked to do.” (Dkt.
22-12, Lee Depo., p. 30.) Lee also stated Ms. Phelps was impolite and had been rude to
her on an occasion when Lee went to City Hall. (Id., pp. 30-31.)
Based on the foregoing, the Court finds Defendants have provided evidence that
the reason for the adverse employment actions was Ms. Phelps’ inability to work with
City employees and the public. Because Defendants have established a legitimate, nonretaliatory reason for the raise denial and vote against reappointment, the burden shifts
back to Ms. Phelps to prove by a preponderance of the evidence that the reason advanced
by the Defendants was a pretext for retaliatory conduct. The Court finds Ms. Phelps has
not met her burden on this claim.
Pretext can be shown “either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.” Dawson v. Entek Intern., 630 F.3d 928,
935 (9th Cir. 2011). The Ninth Circuit has held that a plaintiff at the pretext stage must
produce evidence in addition to that which was sufficient for her prima facie case in order
to rebut the defendant’s showing. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.
1994). In cases where a prima facie case consists of “no more than the minimum
necessary to create a presumption of [retaliation] under McDonnel Douglas, plaintiff has
failed to raise a triable issue of fact.” Id.
Ms. Phelps argues pretext is established because Mayor Telford directly told her
she was not getting a raise due to payroll issues. Although this is a factual issue, Ms.
Phelps must offer evidence in addition to that which was sufficient for her prima facie
case in order to rebut Defendants’ showing. Id.; see also Godwin v. Hunt Wesson, Inc.,
150 F.3d 1217, 1220 (9th Cir. 1998).
Ms. Phelps claims pretext is also established because her “alleged performance
issues are directly contradicted by the exemplary comments Mayor Telford provided on
all of her previous evaluations.” (Dkt. 26, p. 19.) While there are many positive
comments in the evaluations, the negative statements contained therein significantly
corroborate the allegations in the disciplinary letter and testimony of the City Council
regarding Ms. Phelps’ poor attitude. Specifically, the evaluations state Ms. Phelps did
not handle stress well, had a problem with yelling, and was often moody. (Dkt. 26-3,
Exhibit S). The evaluations do not create a genuine issue of material fact because they in
fact support Defendants’ proffered legitimate, non-retaliatory reason for the adverse
Finally, Ms. Phelps submits an affidavit from Mayor Flowers stating he did not
receive similar complaints about Ms. Phelps when he was her supervisor. (Dkt. 27.)
Mayor Flowers’ declaration relates to his previous time as Mayor from 1996 to 2004, and
is too far attenuated from the time at issue in this suit, many years later, when Mayor
Telford and the City Council experienced problems with Ms. Phelps, to establish a
genuine issue of material fact in support of pretext.
Based on the foregoing, the Court finds Ms. Phelps has failed to show that a
genuine issue of material fact exists as to whether the purported reason for the adverse
employment actions was pretext for the Defendants’ retaliation against Ms. Phelps
because of the payroll issue. Accordingly, the Court will grant the Motion for Summary
Judgment on this claim.
NOW THEREFORE IT IS HEREBY ORDERED:
1. Defendants’ Motion for Summary Judgment (Dkt. 22) is GRANTED. 14 This
case is accordingly dismissed with prejudice.
DATED: March 31, 2016
Edward J. Lodge
United States District Judge
Given this ruling, the Court need not address either Defendants’ argument
regarding the necessity of a bond under I.C. § 6-610(2) or the purported limitation of
remedies available under the Whistleblower Act.
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