Falash v. Inspire Academics, Inc. et al

Filing 60

MEMORANDUM DECISION AND ORDER RE: DEFENDANTS RENEWED MOTION FORSUMMARY JUDGMENT (Docket No. 50) granting in part and denying in part 50 Renewed Motion for Summary Judgment. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

THOMAS W. FALASH, an individual
Plaintiff,
vs.
INSPIRE ACADEMICS, INC., an Idaho non-profit
corporation; CONNECTIONS EDUCATION, LLC,
a Delaware corporation; CONNECTIONS
ACADEMY OF IDAHO, LLC, an Idaho
corporation; JILL HAMILTON, individually and as
Director and President, Inspire Academics, Inc.;
DIANA PLANE, individually and as Director,
Inspire Academics, Inc.; MARCIA ROWE,
individually and as Director, Inspire Academics,
Inc.; GERALD CHOUINARD, individually and as
Principal, Inspire Academics, Inc.; TONYA
WESLEY, individually and as Senior Manager of
Employee Relations, Connections Education, LLC,

Case No.: 1:14-cv-00223-REB
MEMORANDUM DECISION AND
ORDER RE: DEFENDANTS’
RENEWED MOTION FOR
SUMMARY JUDGMENT
(Docket No. 50)

Defendants.

Now pending before the Court is Defendants’ Renewed Motion for Summary Judgment
(Docket No. 50). At the close of the July 26, 2016 hearing, the undersigned discussed the
Court’s initial assessment of the merits of certain arguments raised in the Motion, for the benefit
of the parties moving forward. Having carefully considered the record, and after additional
consideration, that assessment remains unchanged and is now contained in this Memorandum
Decision and Order, along with the Court’s consideration of the balance of arguments raised in
the Motion.

MEMORANDUM DECISION AND ORDER - 1

I. BACKGROUND
This case stems from the termination of Plaintiff Thomas W. Falash (“Falash”) from
employment with Defendant Inspire Academics, Inc. (“Inspire”), an online charter school
contracted with Defendant Connections Educations, LLC (“Connections”) to provide online K12 school services within Idaho. In response to his discharge, Falash brings this action, alleging
seven claims: (1) violation of Constitutional (federal and state) due process; (2) violation of
Section 504 of the Rehabilitation Act of 1973; (3) violation of Title II of the Americans with
Disabilities Act (“ADA”); (4) violation of Idaho Code § 6-2101 et. seq. (Protection of Public
Employees); (5) tortious interference with contract; (6) tortious interference with prospective
economic advantage; and (7) discrimination under Title I of the ADA. Defendants move for
summary judgment, arguing that there exists no genuine issue of material fact to support these
claims.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of summary
judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-34 (1986). It is “not a disfavored procedural shortcut,” but is instead
the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and
prevented from going to trial with the attendant unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.”

MEMORANDUM DECISION AND ORDER - 2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute
as to any material fact – a fact “that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and
the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant
must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir.
1999). On the other hand, the Court is not required to adopt unreasonable inferences from
circumstantial evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine
dispute as to a material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en
banc). To carry this burden, the moving party need not introduce any affirmative evidence (such
as affidavits or deposition excerpts) but may simply point out the absence of evidence to support
the nonmoving party’s case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th
Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a
jury verdict in his favor. See Devereaux, 263 F.3d at 1076. The non-moving party must go
beyond the pleadings and show “by her [ ] affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477
U.S. at 324.
III. DISCUSSION
A.

Constitutional Due Process Claims
A cause of action pursuant to 42 U.S.C. § 1983 may be maintained “against any person

acting under color of law who deprives another ‘of any rights, privileges, or immunities secured

MEMORANDUM DECISION AND ORDER - 3

by the Constitution of the laws’ of the United States.” S. Cal. Gas Co. v. City of Santa Ana, 336
F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. § 1983). The rights guaranteed by Section 1983
are “liberally and beneficently construed.” Dennis v. Higgins, 498 U.S. 439, 443 (1991)
(quoting Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 684 (1978)).
Defendants acknowledge that they are state actors. See Mem. in Supp. of MSJ, p. 5
(Docket No. 38, Att. 1). So, the only issue for this Court’s review of Falash’s due process claims
is whether a genuine dispute of material fact exists as to whether Defendants deprived Falash of
his constitutional right to procedural due process.
The Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty,
or property, without due process of law.” U.S. Const. Amend. XIV. “Procedural due process
rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified
deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978).
A procedural due process claim has two discrete elements. First, the court “asks whether
there exists a liberty or property interest which has been interfered with by the State.” Vasquez
v. Rackauckas, 734 F.3d 1025, 1042 (9th Cir. 2013) (internal question marks and citation
omitted). Second, the court “examines whether the procedures attendant upon that deprivation
were constitutionally sufficient.” Id. “[T]he Due Process Clause provides that certain
substantive rights – life, liberty, and property – cannot be deprived except pursuant to
constitutionally adequate procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541
(1985).
There is no dispute that Falash had a property interest in his employment with Inspire.
See Mem. in Supp. of MSJ, p. 5 (Docket No. 38, Att. 1). As such, the issue before the Court

MEMORANDUM DECISION AND ORDER - 4

becomes whether a genuine dispute of material fact exists as to whether Falash received all the
process that was due.
Generally speaking, Defendants contend that “[t]here is no question of fact that [Falash]
was granted due process . . . as there was a formal written notice delivered to him on September
17, 2013" and “[Falash] was granted a proper hearing, at which the Board was present.” Id. at
pp. 5, 7-8. However, the fly in the ointment on this lynchpin issue is the sufficiency of the
hearing provided to Falash – specifically, whether the December 5, 2013 hearing was inevitably
constitutionally deficient because the Board had prejudged the outcome. See Johnson v. Bd. of
Trs. of Boundary Co. Sch. Dist. No. 101, 2010 WL 530070, *6 (D. Idaho 2010) (“To conduct a
hearing where there is even a ‘probability’ that the decision-maker will unfairly decide any issue
presented violates due process requirements. To that end, where a board of representatives has
predetermined the outcome of a due process hearing, there may be a denial of due process.”)
(quoting Withrow v. Larkin, 421 U.S. 35 47 (1975), citing Johnson v. Bonner Co. Sch. Dist. No.
82 v. Bd. of Trs., 887 P.2d 35, 39 (Idaho 1994)); see also Playfair v. South Lemhi Sch. Dist. 292
Bd. of Trustees, 2009 WL 2474205, *5 (D. Idaho 2009) (“A hearing does not comport with due
process if it ‘is totally devoid of a meaningful opportunity to be heard’ because the decisionmakers have predetermined the outcome of the hearing.”) (quoting Matthews v. Harney Co., Or.,
Sch. Dist. No. 4, 819 F.2d 889, 893-94 (9th Cir. 1987)) (internal quotation marks and citation
omitted). The circumstances surrounding this discrete question preclude summary judgment on
Falash’s Constitutional due process claims.
Those circumstances include that, in October 2013, Connections’ Assistant Director of
Employee Relations and Training, Tonya Wesley, issued correspondence to Falash essentially

MEMORANDUM DECISION AND ORDER - 5

stating that, as of September 17, 2013 (far in advance of the December 5, 2013 hearing), he had
already been terminated from Inspire. See, e.g., Ex. K to Thomas Aff. (Docket No. 53, Att. 13)
(10/23/13 memorandum from Wesley to Falash stating in relevant part: “Upon review of your
complaints, no evidence was found to support that your bringing forth complaints to your school
administrators had a bearing or influence on your termination from Inspire Academics. Your
termination was related to your performance and complaints received regarding your behavior.”)
(emphasis added); see also Ex. P to Thomas Aff. (Docket No. 53, Att. 18) (10/4/13 letter from
Wesley to Falash stating in relevant part: “As I have been directly involved in this process, I can
confirm that this was not a decision based solely on information provided by Principal
Chouinard and Vice Principal Frogley.”).1 On October 25, 2013, Connections posted Falash’s
position as open and actively began recruiting job applicants. See Ex. J to Thomas Aff. (Docket
No. 53, Att. 12).
At a minimum, these actions which predate the December 5, 2013 hearing when viewed
with all inferences drawn in Falash’s favor, support an argument that the Board had already
made up its mind that Falash was no longer employed by Inspire – essentially rendering into
window-dressing any subsequent hearing to consider whether he should be terminated pursuant
to due process protocol. Given this, it cannot be said that Falash’s due process rights (under
federal and state law) were satisfied as a matter of law. Defendants’ Motion for Summary
Judgment is denied in this respect.2
1

That Wesley now testifies that her references in the Fall of 2013 to Falash being
terminated “was a mistaken use of language,” does not alter the inferences that can be made in
Falash’s favor that the September 5, 2013 was simply a fait accompli. See Wesley Decl., ¶ 7
(Docket No. 38, Att. 11). Whether her language was a mistake, or whether she made a mistake
in using the language she did in a procedural due process context, will be for the jury to decide.
2

In denying Defendants’ Motion for Summary Judgment on this point, the Court is only
calling into question whether the Board conducted a fair and impartial hearing. See Stivers v.
Pierce, 71 F.3d 732, 741 (9th Cir. 1995) (“It is well-settled that the Due Process Clause prevents
MEMORANDUM DECISION AND ORDER - 6

B.

Section 504 of the Rehabilitation Act of 1973 and Title II ADA Claims
“Because the ADA was modeled on Section 504 of the Rehabilitation Act, ‘courts have

applied the same analysis to claims brought under both statutes.’” Boose v. Tri-County Metro.
Transp. Dist. of Oregon, 587 F.3d 997, 1001 n.5 (9th Cir. 2009) (quoting Zukle v. Regents of
Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999)); see also Douglas v. Cal. Dep’t of Youth
Auth., 285 F.3d 1226, 1229 n.3 (9th Cir. 2002) (noting that cases interpreting the ADA and
Rehabilitation Act are “interchangeable”). As a result, the elements and burden of proof for a
retaliation claim under the Rehabilitation Act is the same as the ADA – in other words, absent
direct evidence of retaliation, the court must apply the McDonnell Douglas burden-shifting
framework. See Corrales v. Moreno Valley Unified Sch. Dist., 2010 WL 2384599, *4 (C.D. Cal.
2010) (applying framework to Rehabilitation Act claim); Barnett v. U.S. Air, Inc., 228 F.3d
1105, 1121 (9th Cir. 2000) (applying framework to ADA claim)3

the state from depriving a plaintiff of a protected property interest without ‘a fair trial in a fair
tribunal.’” (quoting In re Murchison, 349 U.S. 133, 136 (1955)). The Court is not stating here
that the Board could not ipso facto be impartial. Compare with Byers v. New Plymouth Sch.
Dist. No. 372, 2013 WL 5943938, *7 (D. Idaho 2013) (focusing not on Board’s make-up per se,
but whether bias existed, stating: “To rebut an administrative board’s presumption of honesty, a
plaintiff must demonstrate that the tribunal was actually biased, or that there was an
impermissible appearance of bias.”). Despite questions concerning the Board’s impartiality as to
various other moving parts to Plaintiff’s Constitutional due process claims, the Court rules here
that (1) Defendants did not violate Idaho Code § 33-513(7) procedural requirements, and (2) to
the extent Idaho Code § 67-2345 required an executive session (this Memorandum Decision and
Order makes no such finding), there was no deprivation of due process here by virtue of the fact
that it ended up not being a closed session – (Indeed, the decision as to whether to enter into an
executive decision under the Idaho open meeting law is a discretionary decision in the first
instance).
3

Under the McDonnell Douglas burden-shifting framework, the plaintiff must first
establish a prima facie case of retaliation. Then, the burden shifts to the defendant to set forth a
legitimate, non-retaliatory reason for the actions taken. If the defendant does so, the plaintiff
must then show that the defendant’s proffered reason is a pretext for retaliation. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
MEMORANDUM DECISION AND ORDER - 7

So, to state a prima facie claim under both the Rehabilitation Act and Title II of the ADA,
a plaintiff must show that (1) he engaged in a protected activity; (2) he suffered a materially
adverse employment action; and (3) there exists a causal connection between the protected
activity and the adverse employment action. See Pardi v. Kaiser Found. Hosp., 389 F.3d 840,
849 (9th Cir. 2004). Defendants argue that Falash cannot state a prima facie claim for either a
violation of the Rehabilitation Act or the ADA because (1) Falash did not engage in a protected
activity, but was, instead, doing only what his job required; and (2) he cannot establish a causal
connection between any alleged protected activity and his termination (Defendants concede that
termination from employment represents an adverse employment action ). See Mem. in Supp. of
MSJ, pp. 10-15 (Docket No. 38, Att. 1).
As described at the conclusion of oral argument, the undersigned struggles with
understanding where, exactly, Falash’s duties at Inspire begin and end. On the one hand,
Defendants contend that Falash was fired because he “fail[ed] in the most essential aspect of his
job” (ensuring that special education students’ needs were being met under their individual
education plans and logging that information to ensure Connections was in compliance with its
reporting obligations). See Mem. in Supp. of MSJ, p. 13 (Docket No. 38, Att. 1). On the other
hand, Falash asserts that he did more than just his job requirements, to include advocacy work on
behalf of disabled students. See Opp. to MSJ, pp. 13-14 (Docket No. 53). The former is not
protected activity; the latter is protected activity. Unfortunately, the record is not clear on
whether Falash’s advocacy work, if true, was part of his job duty requirements. As such, an
issue of fact exists concerning whether Falash engaged in protected activity
Likewise, given the closeness in time between (1) Falash’s alleged advocacy work – in
particular, his recommendation for computer equipment for special education students in August
MEMORANDUM DECISION AND ORDER - 8

and September 2013 – and, (2) being placed on administrative leave and, ultimately, fired during
that same time frame, it is plausible to infer that the two are related for the purposes of
establishing the requisite causal connection. See, e.g., US E.E.O.C v. Placer ARC, 114 F. Supp.
3d 1048, 1061 (E.D. Cal. 2015) (“Facts sufficient to establish the causation element of a prima
facie case may be inferred from circumstantial evidence such as the employer’s knowledge that
the plaintiff engaged in protected activities and the proximity in time between the protected
action and the allegedly retaliatory employment decision.”); see also Corrales, 2010 WL
2384599 at *6 (“Thus, there was no gap in time between the protected activity and the
termination. Such continuous activity places it ‘very close’ in time to the alleged retaliatory act
so as to create a permissible inference that there was a connection between the two.”).4 As such,
an genuine issue of material fact exists concerning whether a connection exists between Falash’s
protected activity and his firing. In short, this means that, after viewing the disputed facts in
Falash’s favor, he has stated a prima facie claim under the Rehabilitation Act and Title II of the
ADA.
Under McDonnell Douglas, the burden then shifts to Defendants to articulate a legitimate
nondiscriminatory reason for firing Falash. Defendants have done so, pointing to Falash’s
alleged shortcomings in being able to satisfactorily complete his work. See Mem. in Supp. of
MSJ, p. 15 (Docket No. 38, Att. 1) Then, the burden shifts back to Falash to demonstrate that

4

Defendants argue in favor of a “but for” causation standard. See Mem. in Supp. of
MSJ, p. 12 (Docket No. 38, Att. 1). Although many district courts within the Ninth Circuit have
agreed, the Ninth Circuit itself has not yet fully applied (though it does seem to recognize) this
higher standard. See Placer ARC, 114 F. Supp. 3d at 1060; see also White v. Twin Falls County,
2016 WL 1275594, *10, n.1 (D. Idaho 2016). This Memorandum Decision and Order does not
resolve the issue here; regardless, even under a but-for standard, questions of fact exist on the
issue, precluding summary judgment on this point.
MEMORANDUM DECISION AND ORDER - 9

Defendants’ articulated reason is merely a pretext for discrimination. In turn, Falash has met this
burden (at least in that he has created a dispute of material fact on the issue). Juxtaposed with
his alleged performance issues, Falash relies upon the fact that his 2013 evaluation was favorable
and included a recommendation that he be re-hired for the next school year. See Opp. to MSJ, p.
17 (Docket No. 53) (citing Ex. E to Thomas Aff. (Docket No. 53, Att. 7) (comment from
Chouinard as of 6/18/13, stating: “Tom is dedicated to Inspire’s student and team; this is evident
in his enthusiasm, passion, and work ethic. He is a believer in Inspire’s vision of All Students
Can and Must Learn. I look forward to working with Tom and helping him grow as Inspire’s
Manager of Special Education throughout the summer and the 13-14 school year.”). Combined
with the timing issues of his firing vis à vis his alleged advocacy on behalf of disabled students
(see supra), this evidence is suggestive of pretext. Accordingly, Defendants’ Motion for
Summary Judgment is denied in these respects.
C.

Idaho Code § 6-2101 Claim
The Protection of Public Employees Act (the “Whistle-Blower Act”) “protect[s] the

integrity of 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.” I.C. § 6-2101. To protect an employee from adverse action, the
Whistle-Blower Act prohibits an employer from taking adverse action against an employee
“because the employee, or a person authorized to act on behalf of the employee, communicates
in good faith the existence of any waste of public funds, property or manpower, or a violation or
suspected violation of a law, rule or regulation adopted under the law of this state or the United
States.” I.C. § 6-2104(1)(a).

MEMORANDUM DECISION AND ORDER - 10

To establish a claim under the Whistle-Blower Act, a plaintiff must show, “by a
preponderance of the evidence, that the employee has suffered an adverse action because the
employee . . . engaged or intended to engage in an activity protected under [Idaho Code § 62104].” I.C. § 6-2105(4). To survive summary judgment, Falash must only present evidence
from which a rational inference of retaliatory discharge under the Whistle-Blower Act could be
drawn. See Curlee v. Kootenai Co. Fire & Rescue, 224 P.3d 458, 464 (Idaho 2008). On motion
for summary judgment, the court is not to consider the employer’s rationale for discharge, nor
require the employee to dispute the employer’s proffered non-discriminatory reasons for
discharge. See id. at 463-64 (holding that the McDonnell Douglas burden-shifting analysis does
not apply at summary judgment stage under Whistle-Blower Act); but see Summers v. City of
McCall, 84 F. Supp. 3d 1126, 1137-38 (D. Idaho 2015) (discussing conflict in Idaho concerning
whether, in fact, McDonnell Douglas analysis applies to Whistler-Blower Act claims at summary
judgment stage – standard does apply at trial).5
A prima facie case for retaliatory discharge under the Whistle-Blower Act requires
Falash to show: (1) he was an “employee” that engaged or intended to engage in protected
activity; (2) his “employer” took adverse action against him; and (3) the existence of a causal
connection between the protected activity and the employer’s adverse action. See Van v.
Portneuf Med. Cntr., 330 P.3d 1054, 1059 (Idaho 2014).
Here, Defendants argue that Falash fails his burden of a prima facie case under the
Whistle-Blower Act because “Inspire and Connections listened to his disenrollment policy and
allowed him to present its merits” and that “[t]he facts establish that . . . Falash was terminated

5

Under the circumstances, any conflict in this respect is immaterial given the Court’s
consideration of other claims employing the McDonnel Douglas standard and the arguments
raised in relation to Falash’s Whistle-Blower Act claim here.
MEMORANDUM DECISION AND ORDER - 11

as a result of the inability to improve upon the issues contained in his [performance improvement
plan].” Mem. in Supp. of MSJ, pp. 16-17 (Docket No. 38, Att. 1). In actuality, this argument
already assumes that Falash has made a prima facie case for retaliatory discharge under the
Whistle-Blower Act, but, even so, that he was fired for a legitimate, non-discriminatory reason
(as if the McDonnel Douglas burden-shifting framework applied). Defendants also argue that
Falash “cannot establish that an adverse employment action was taken against him because of
any so-called whistleblowing activity” – an attack of the third element of the prima facie case.
Id. at p. 17. Neither argument is persuasive as a matter of law.
First, Defendants do not dispute that Falash engaged in protected activity. See Pl.’s
SODF Nos. 9, 11, 13, 15 (Docket No. 53, Att. 1). Therefore, assuming the McDonnel Douglas
framework applies, Defendants’ argument that Falash was fired for work-performance issues has
already been rebuffed in the context of Falash’s Section 504 of the Rehabilitation Act of 1973
and Title II of the ADA claims. See supra. Second, questions of fact already inform the
motivations leading up to Falash’s firing – again, as discussed in the context of Falash’s Section
504 of the Rehabilitation Act of 1973 and Title II of the ADA claims. See supra. These issues
of fact prevent a finding as a matter of law that Defendant did not violate the Whistle-Blower
Act. Defendants’ Motion for Summary Judgment is denied in this respect.
D.

Tortious Interference with Contract/Prospective Economic Advantage Claims
The Idaho Tort Claims Act (“ITCA”) establishes that governmental entities and their

employees are subject to liability for their own negligent or wrongful acts. See Hoffer v. City of
Boise, 257 P.3d 1226, 1228 (Idaho 2011) (citing Grant v. City of Twin Falls, 813 p.2d 880, 887
(Idaho 1991)); see also I.C. § 6-903(1) (“Except as otherwise provided in this act, every
governmental entity is subject to liability for money damages arising out of its negligent or
MEMORANDUM DECISION AND ORDER - 12

otherwise wrongful acts or omissions and those of its employees acting within the course and
scope of their employment or duties . . . where the governmental entity if a private person or
entity would be liable for money damages under the laws of the state of Idaho.”). However, the
ITCA goes on to expressly exempt certain causes of action from the general rule that
governmental entities (and their employees) are subject to liability. See Hoffer, 257 P.3d at 1228
(citing Grant, 813 P.2d at 887-88). In this respect, the ITCA reads:
A governmental entity and its employees while acting within the course and scope
of their employment and without malice or criminal intent shall not be liable for any
claim which . . . [a]rises out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.
I.C. § 6-903(3) (emphasis added). Relevant here, Falash asserts his tortious interference with
contract/prospective economic advantage claims against Wesley only.
But Falash’s other factual allegations are that Wesley and her employer, Connections, are
“state actors” (which Defendants have admitted in the context of Falash’s Constitutional due
process claims). See, e.g., Am. Compl. ¶¶ 17, 68-69 (Docket No. 26) (“Defendant Connections
was a state actor and engaged in state action . . . . All Defendants are state actors whom
proximately caused the due process violation . . . . Connections is a state actor based on its
close nexus to and it contractual agreements with Inspire.”). These allegations, alongside state
law implications relative to the formation and funding of charter schools in the state of Idaho
(see, e.g., id. at ¶¶ 10-16), create an uncommon situation in which both Inspire and Connections
(and, by extension, Wesley) could be considered state actors and/or governmental entities for the
purposes of federal Section 1983 claims, in addition to state common law claims. Indeed, this is
what Falash has done. It would now be disingenuous for Falash, in the face of a motion for
summary judgment, to argue that Defendants, including Wesley, are state actors for the purposes
MEMORANDUM DECISION AND ORDER - 13

of one claim, but not another. Accordingly, Idaho Code § 6-903(3) precludes Falash’s toritous
interference with contract/prospective economic advantage claims against Wesley.6 Defendants’
Motion for Summary Judgment is granted in these respects.
E.

Title I ADA Claim
To state a prima facie case of Title I ADA discrimination, Falash must show that (1) he is

a disabled person within the meaning of the ADA; (2) he was able to perform the essential
functions of the job, with or without reasonable accommodation; and (3) he suffered an adverse
employment action because of his disability – understood to mean that his disability was a
motivating factor behind the discrimination. See Allen v. Pac. Bell, 348 F.3d 113, 114 (9th Cir.
2003); see also Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1065 (9th Cir. 2005) (holding
that “a motivating factor standard is the appropriate standard for causation in the ADA
context.”). Defendants argue that Falash has not established a prima facie case of disability
discrimination. See Mem. in Supp. of MSJ, pp. 21-22 (Docket No. 38, Att. 1); see also The
undersigned agrees.
While the record could be read to support an argument that Falash was fired because he
was ineffective at his job or, conversely, that he was fired in retaliation for engaging in otherwise
protected activity (see supra), the record does not support an argument that he was fired because
he, himself, was allegedly disabled or perceived as such To be sure, the references in the record
speaking to Falash’s disability and, in turn, the alleged adverse employment actions resulting

6

This decision does not decide, and need not decide, whether Wesley acted with the
necessary malice or criminal intent to render ITCA’s exemption inapplicable. See Miller v.
Idaho State Patrol, 252 P.3d 1274, 1288 (Idaho 2011) (“Malice here means ‘the intentional
commission of a wrongful or unlawful act, without legal justification or excuse and with ill will,
whether or not injury was intended.’”) (quoting Beco Constr. Co. v. City of Idaho Falls, 865 P.2d
950, 955 (Idaho 1993)).
MEMORANDUM DECISION AND ORDER - 14

therefrom that Falash complains of, preceded Falash’s termination to such a degree that no
reasonable trier-of-fact could find that there was a connection, or motivating factor, between the
two. Defendants’ Motion for Summary Judgment is granted in this respect.
IV. ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that Defendants’ Renewed
Motion for Summary Judgment (Docket No. 50) is GRANTED, in part, and DENIED, in part, as
follows:
1.

Falash’s Constitutional due process claims remain. In this respect, Defendants’

Motion for Summary Judgment is DENIED.
2.

Falash’s Section 504 of the Rehabilitation Act of 1973 claim remains. In this

respect, Defendants’ Motion for Summary Judgment is DENIED.
3.

Falash’s Title II ADA claim remains. In this respect, Defendants’ Motion for

Summary Judgment is DENIED.
4.

Falash’s Idaho Code § 6-2101 claim remains. In this respect, Defendants’ Motion

for Summary Judgment is DENIED.
5.

Falash’s tortious interference with contract claim remains. In this respect,

Defendants’ Motion for Summary Judgment is GRANTED.
6.

Falash’s tortious interference with prospective economic advantage is dismissed.

In this respect, Defendants’ Motion for Summary Judgment is GRANTED.
///
///
///
///
MEMORANDUM DECISION AND ORDER - 15

7.

Falash’s Title I ADA claim is dismissed. In this respect, Defendants’ Motion for

Summary Judgment is GRANTED.
DATED: September 12, 2016

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 16