Dew v. Edmunds et al

Filing 30

MEMORANDUM DECISION AND ORDER granting 19 Defendant's Motion to Dismiss and the Amended Complaint (Dkt. 4 ) is DISMISSED without prejudice. Plaintiff may file an amended complaint by 11/6/2015. If Plaintiff does not amend his Complaint within that time period, Counts I, II, IV, and V will be dismissed with prejudice, and Count III will be dismissed without prejudice.Signed by Judge Candy W. Dale. (Attachments: # 1 Appendix) (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
FOR THE DISTRICT OF IDAHO

DONALD A. DEW, an individual,
Case No. 1:15-cv-00149-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
DIRECTOR KENNETH D.
EDMUNDS; PAMELA P. PARKS
and JOHN/JANE DOES I through X,
whose true identities are presently
unknown,
Defendants.

INTRODUCTION
Before the Court is Defendants’ Motion to Dismiss. (Dkt. 19.) The matter has
been fully briefed and is ripe for the Court’s consideration. The Court conducted a
hearing on September 22, 2015, and thereafter took the motion under advisement. Having
fully reviewed the record and considered the parties’ respective arguments and applicable
legal authority, the Court enters the following order granting the motion, with leave to
amend.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Plaintiff Donald Dew’s complaint, filed on May 1, 2015, and later amended on
May 7, 2015, asserts various civil rights violations committed by Kenneth Edmunds, the
Director of the Idaho Department of Labor (IDOL), and Pamela Parks, the Administrator
of the Idaho Commission on Human Rights (ICHR). (Dkt. 1, 4.) Both Edmunds and
Parks are sued in their individual capacities for alleged violations of Dew’s civil rights
under 42 U.S.C. § 1983. The factual background alleged in the Amended Complaint is
taken as true for purposes of the pending motion.
In June of 2014, Dew applied for the position of ICHR Administrator. Am.
Compl. ¶ 15 (Dkt. 4). On July 23, 2014, Dew participated in a video conference interview
with Parks and four of the nine ICHR Commissioners—Estella Zamora (“Commissioner
Zamora”), Brian Scigliano (“Commissioner Scigliano”), Joe McNeal (“Commissioner
McNeal”), and Andrea Wassner (“Commissioner Wassner”) (collectively the
“Commissioners”). Id. at ¶ 18.
On August 26, 2014, Parks and the same ICHR Commissioners called Dew for an
impromptu conference call phone interview to discuss the position further. Id. at ¶¶ 2735. Dew contends that, during the telephone interview, the Commissioners and Parks
asked him questions, such as his salary requirements, how long before he could start if
offered the position, and about his mediation training. Id. at ¶¶ 29-33. At the conclusion
of the interview, which lasted approximately thirty minutes, Parks asked Dew if he could
come to Boise for an in-person interview. Id. ¶¶34-35. Dew agreed to travel to Boise,
MEMORANDUM DECISION AND ORDER - 2

Idaho, from Sioux City, Iowa, for an interview, and the ICHR arranged for Dew to fly to
Boise on Thursday, September 4, 2014, and return home on Sunday, September 7, 2014.
Id. at ¶¶ 36-39.
On September 4, Dew first met with Parks and Commissioners Zamora, McNeal,
and Scigliano for a little over an hour. Id. at ¶ 43-44. Dew allegedly was asked by
Commissioner McNeal “what salary he would accept, when he could start, and what his
commitment to the position would be.” Id. at ¶45-46. Also during the meeting, Dew
learned the relationship between the ICHR and the IDOL was complex, and the IDOL
oversaw the ICHR and had control over its budget. Id. at ¶ 48. Dew learned also that he
would be meeting with Edmunds and Jay Engstrom, the Deputy Director of the IDOL, at
the conclusion of the interview. Id. ¶¶55. As Commissioner McNeal left the interview, he
allegedly shook Dew’s hand and told Dew that he hoped to see him next month in “that
chair,” indicating Parks’s chair, and told Parks that “you know what my vote is” in front
of Dew and the others, leaving Dew with the impression that Commissioner McNeal was
voting yes to hire Dew. Id. ¶¶52-54.
After the interview concluded, Parks escorted Dew to meet with Edmunds and
Engstrom. Id. at ¶ 57. Dew contends Edmunds’s demeanor was unfriendly from the
beginning of the meeting. Id. at ¶ 60. Edmunds questioned Dew about ReachOut USA,
an organization Dew started in 2007 to help LGBT individuals with disabilities. Id. at ¶
71. Dew contends Edmunds’s mention of ReachOut USA multiple times throughout the
meeting made Dew aware that including ReachOut USA on his resume was not
beneficial. Id. at ¶ 72.
MEMORANDUM DECISION AND ORDER - 3

Dew asserts that next, Edmunds told Dew he needed to look over gaps in Dew’s
employment. Id. at ¶ 73. When Edmunds asked Dew about a two-year gap in
employment beginning in 2004, Dew explained he had a series of infections that caused
him to have an uncontrolled seizure disorder, which forced Dew to file for disability. Id.
at ¶¶ 76-78. Dew alleges that, after he answered the question, Edmunds’s “facial
expression contorted like he smelled a dirty diaper.” Id. at ¶ 79. Dew asserts he saw “a
look of disgust” on Edmunds’s face. Id. at ¶ 80. Dew contends that Edmunds then asked
“in an incredulous tone” if Dew could even work a 40 hour week. Id. at ¶ 81. Dew stated
he could work a 40 hour week and did so at his current job, he had not experienced a
seizure in three years, and he would not have applied for the position if he did not think
he could do the job. Id. at ¶¶ 83-86.
According to Dew, after he disclosed his seizure disorder, Edmunds’s “tone and
questions were noticeably different,” Edmunds’s tone was “condescending,” and he
began treating Dew like Dew was “beneath him or a lesser person.” Id. at ¶¶ 86-87. Dew
contends Edmunds’s reaction to Dew’s disclosure of the seizure disorder was as if
Edmunds believed Dew’s mental faculties were “dimmed” because of the disorder. Id. at
¶ 90. Dew contends he noticed the change in Edmunds’s demeanor because Edmunds’s
reaction was familiar to Dew, as he previously has experienced how others have treated
him like a lesser person or have become uncomfortable once he mentioned his seizure
disorder. Id. at ¶¶88-89.
After the meeting with Edmunds, Edmunds asked Engstrom and Parks to
accompany him to his office to discuss Dew while Dew waited in the conference room.
MEMORANDUM DECISION AND ORDER - 4

Id. at ¶ 91. After approximately thirty minutes, Parks returned to the conference room,
and said, “Oh, you are still here? I will take you downstairs.” Id. ¶ 92-93. Dew felt
surprised by Parks’s question and confused about what was happening. Id. ¶ 94-95. Parks
escorted Dew downstairs to the front of the IDOL building at approximately 6:00 p.m.,
thanked Dew for traveling to Boise, and informed him that the Commission would have
to meet again, and that it could take about a week for that meeting to occur. Id. at ¶¶9697.
Dew contends that, upon arriving back to his hotel, he “felt confused and belittled
by Director Edmunds’s attitude and actions toward him,” and felt that Edmunds was
antagonistic and had his mind made up before the interview began. Id. ¶ 102-103. Dew
was hoping Parks would contact him so Dew could make “some sense of what had
transpired during his interview” with Edmunds, and that when he heard nothing, he
became frustrated and angry, and decided to reschedule his return flight home. Id. at ¶¶
104-108.
Dew asserts he was so distraught by Edmunds’s “discriminatory treatment” and
biases that Dew sent an email to Parks on September 8, 2014, withdrawing his
application from consideration. Id. at ¶¶ 116, 119. Dew asserts that he knew Edmunds’s
biases made it an “exercise in futility” to keep his application in the consideration
process. Id. at ¶ 117.
With regard to Parks, Dew asserts that, after withdrawing his application from
consideration, he obtained copies of all relevant documents from the interview process,
including notes containing information Parks received from Dew’s references. Id. at ¶
MEMORANDUM DECISION AND ORDER - 5

124. Dew asserts the notes revealed that two of Dew’s references discussed Dew’s
disability with Parks, and that one reference, Karen Mackey, allegedly made multiple
statements about Dew’s disability and status as a gay man. Id. at ¶¶ 125-26. Dew later
sent a copy of these notes to Mackey, who advised Dew that the notes contained multiple
inaccuracies. Id. at ¶¶127-28. Mackey told Dew she most likely used the phrase “in a
relationship” during the reference interview with Parks, but Mackey never said Dew was
in a gay relationship; therefore, Parks must have added the word “gay” to the notes. Id. at
¶ 128-29.
The Amended Complaint contains five counts. Count I alleges discrimination in
violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Idaho
Code §§ 67-5909(1) and 67-5901, on the grounds that Dew suffered an adverse
employment action by having the position he applied and interviewed for made
unavailable to him because of his disability. Specifically, Dew alleges that Edmunds’s
bias toward Dew during the September 4, 2014 interview resulted in the loss of
opportunity for Dew to compete for the open Administrator position, and that he was
denied the fair opportunity to continue competing for the position.
Count II alleges discrimination in violation of Title VII of the Civil Rights Act of
1964 as amended, 42 U.S.C. § 2000e, and Idaho Code §§ 67-5901 and 67-5907(1), on the
grounds that Dew was denied the opportunity to fairly compete for the open
Administrator position despite his qualifications because of unlawful sex discrimination
based on sexual stereotyping. Dew relies upon Edmunds’s negative comments regarding
Dew’s involvement with ReachOut USA, an advocacy organization for LGBTQ and
MEMORANDUM DECISION AND ORDER - 6

disabled individuals, and Parks’s reference to Dew’s sexual orientation in her reference
inquiry notes.
Count IV alleges violation of the Equal Protection Clause of the Fourteenth
Amendment, on the grounds Defendants deprived Dew of his right to equal protection by
discriminating against him on the basis of disability in the hiring process. Count V
alleges violation of the Equal Protection clause on the grounds that Edmunds and Parks
deprived Plaintiff of the opportunity to compete and be fairly considered for the
Administrator position with the ICHR and of his right to equal protection of the law by
discriminating against him on the basis of his sexual orientation. And finally, in Count
III, Dew alleges negligent infliction of emotional distress.
Dew concedes that Count IV is foreclosed because the ADA provides the
exclusive remedy for disability discrimination in the employment context. Count IV will
therefore be dismissed.
DISPOSITION
1.

Motion to Dismiss Standard
A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6)

tests the sufficiency of a party's claim for relief. 1 When considering a motion to dismiss,
the Court’s inquiry is whether the allegations in the pleading are sufficient under
applicable pleading standards. Federal Rule of Civil Procedure 8(a) sets forth minimum
pleading rules, requiring only a “short and plain statement of the claim showing that the
1

A party may move to dismiss a complaint for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6).

MEMORANDUM DECISION AND ORDER - 7

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint is plausible when the
factual content “allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). This standard does not
require that the misconduct be “probable,” but it “asks for more than just a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. The Supreme
Court specified that “heightened fact pleading of specifics” is not required, “but only
enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570. “Determining whether a complaint states a plausible claim for relief will ... be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 662.
When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), “all well-pleaded allegations of material fact are taken as true and construed in a
light most favorable to the non-moving party.” Wyler Summit P'ship v. Turner Broad.
Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). However, the Court does
not necessarily assume the truth of legal conclusions merely because they are cased in the
form of factual allegations in the plaintiff’s complaint. See Clegg v. Cult Awareness
Network, 18 F.3d 752, 754–55 (9th Cir. 1994). There is a strong presumption against
dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108
F.3d 246, 249 (9th Cir. 1997) (citation omitted). “‘The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to support the
claims.’” Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) overruled on other
MEMORANDUM DECISION AND ORDER - 8

grounds by Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). Consequently, the Court
should not grant a motion to dismiss for failure to state a claim “unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995) (quoting Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1990)). A claim is sufficient if it shows that
the plaintiff is entitled to any relief which the court can grant, even if the complaint
asserts the wrong legal theory or asks for improper relief. See United States v. Howell,
318 F.2d 162, 166 (9th Cir. 1963).
“[D]ismissal without leave to amend is improper unless it is clear that the
complaint could not be saved by any amendment.” Jackson v. Carey, 353 F.3d 750, 758
(9th Cir. 2003). The Ninth Circuit has held that, “in dismissals for failure to state a claim,
a district court should grant leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not possibly be cured by the allegation
of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d
242, 247 (9th Cir. 1990). Additionally, when evaluating a 12(b)(6) motion, judicial
review is “limited to the contents of the complaint.” Clegg, 18 F.3d at 754. However,
exhibits attached to the complaint also may be considered. Parks School of Business, Inc.
v. Symington, 51 F.3d 1480.
2.

Legal Standard Under 42 U.S.C. § 1983
Section 1983 is “‘not itself a source of substantive rights,’ but merely provides ‘a

method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S.
386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). To
MEMORANDUM DECISION AND ORDER - 9

establish a prima facie case under § 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) (citing Parratt v. Taylor, 451 U.S. 137, 140 (1979)). In other words, to
state a claim under § 1983, a plaintiff must allege: “(1) a violation of rights protected by
the Constitution or created by federal statute (2) proximately caused (3) by conduct of a
‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420
(9th Cir.1991). The threshold inquiry for a § 1983 action is “whether the plaintiff has
been deprived of a right ‘secured by the Constitution and laws.’” Baker, 443 U.S. at 140.
3.

Discussion
A.

Counts One and Two – Discrimination Under the ADA, Title VII, and the
IHRA

In Dew’s fist two counts, he alleges disparate treatment claims under the ADA,
Title VII, and the IHRA. To establish a prima facie case of discrimination under the
ADA, Dew must show that he: (1) is disabled; (2) is qualified; and (3) suffered an
adverse employment action because of his disability. Snead v. Metro. Prop. & Cas. Ins.
Co., 237 F.3d 1080, 1087 (9th Cir. 2001).
Under Title VII, an employer may not fail or refuse to hire, or discharge any
individual, or discriminate against a person with respect to his “compensation, terms,
conditions, or privileges of employment” because of his sex. 42 U.S.C. § 2000e-2(a). To
establish a prima facie case of discrimination under Title VII, Dew must establish (1) he
belongs to a protected class, (2) he was qualified for the position, (3) he was subjected to

MEMORANDUM DECISION AND ORDER - 10

an adverse employment action, and (4) similarly situated individuals outside the protected
class were treated more favorably. Aragon v. Republic Silver State Disposal, Inc., 292
F.3d 654, 658 (9th Cir. 2002).
Finally, under the IHRA, it is unlawful “to fail or refuse to hire, to discharge, or to
otherwise discriminate against an individual with respect to compensation or the terms,
conditions or privileges of employment” because of the individual’s sex and/or disability.
I.C. § 67-5909; 42 U.S.C. § 2000e-2(a); 42 U.S.C. § 12112. Federal law guides the
Court’s interpretation of the IHRA. Hatheway v. Bd. of Regents of Univ. of Idaho, 310
P.3d 315, 322 (Idaho 2013).
Under all three statutory schemes, Dew must allege facts establishing he suffered
an adverse employment action. An adverse employment action is one that “materially
affects the compensation, terms, conditions, or privileges of ... employment.” Davis v.
Team Electric Co., 520 F.3d 1080, 1089 (9th Cir. 2008). “A tangible employment action
constitutes a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Burlington Indus. Inc. v. Ellerth, 524 U.S.
742, 761 (1998). A bruised ego, however, is insufficient to constitute an adverse
employment action. Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994),
cited in Burlington, 524 U.S. at 761.
Defendants assert Dew’s withdrawal of his application on September 8, 2014,
precludes him from making a discrimination claim, because the withdrawal of Dew’s
application prevents a finding of adverse action, an essential element of Dew’s prima
MEMORANDUM DECISION AND ORDER - 11

facie case. Dew, on the other hand, alleges the hiring process was complete after his
interview with Edmunds, and that Edmunds’s discriminatory behavior led him to believe
the Administrator position was closed to him specifically, thereby denying him the
opportunity to fairly compete for the position. In other words, Dew believed the interview
with Edmunds was the final step in the application process, despite admitting Parks
informed him after his interview with Edmunds that the Commission 2 would need to
meet, and it would take one week to do so. Dew relies upon Ruggles v. Cal. Polytechnic
State Univ., 797 F.2d 782, 786 (9th Cir. 1986), as support for his position, which
discussed elimination of a job opportunity as a basis for discrimination, as well as the
futile gesture doctrine explained in Internat’l Brotherhood of Teamsters v. United States,
431 U.S. 324, 366 (1977).
Dew’s novel claim finds no support in the case law reviewed by the Court. Under
the facts alleged, Dew seeks to expand the concept of “adverse action” too far. Several
district court cases have considered what constitutes adverse action, and all consistently
require an affirmative act on the part of the employer. For example, a decision to revoke a
conditional offer of employment accepted by the prospective employee constituted an
adverse action in Jones v. Halstead Mgt. Co., LLC, No. 14-CV-3125-VEC, 2015 WL
366244 at *7 (S.D.N.Y. Jan. 27, 2015). There, the plaintiff received a letter from the
prospective employer stating that it had “decided to revoke your conditional offer of

2

By statute, the Commission is composed of nine members appointed by the Governor. Idaho
Code § 67-5903.

MEMORANDUM DECISION AND ORDER - 12

employment.” Id. The court therefore concluded the facts alleged were sufficient to
support the claim that adverse action had occurred. Id. 3
Here, despite Dew’s assertion that his interview with Edmunds was the last step in
the process (and despite Dew’s admission he knew the Commission was meeting once
again), Dew affirmatively withdrew his application from further consideration. Neither
Edmunds nor Parks engaged in any conduct that ceased the hiring process as it pertained
to Dew. Other than Commissioner McClean’s off the cuff remark that “you know what
my vote is,” and the positive feeling Dew had at the conclusion of the interview with
Parks and three of the Commissioners, no one expressly offered (or did not offer) Dew
the position.
There can be no adverse employment action where a plaintiff, by his own volition,
withdraws his application from further consideration prior to being offered the job. See
Sanchez v. The Univ. of Connecticut Health Care, 292 F.Supp.2d 385, 394 (D. Conn.
2003) (finding plaintiff did not set forth a prima facie case of discrimination because “she
voluntarily withdrew her application”); Burt v. Nat’l Republican Club of Capitol Hill,
828 F.Supp.2d 115, 125-26 (D.C. Cir. 2012) (finding chef’s failure to complete the final
step in the application process, which consisted of a taste test, did not constitute adverse
employment action because the plaintiff decided of his own volition not to participate in
the taste test).

3

In Halstead, the prospective employee was denied the position based upon a credit report
obtained by the employer. Although Halstead involved an employment claim premised upon violation of
the Fair Credit Reporting Act, the Court finds it instructive for its analysis of adverse action.

MEMORANDUM DECISION AND ORDER - 13

This Court confronted an analogous factual situation in Flowers v. City of Parma,
No. 1:14-cv-00453-EJL, No. 18 (D. Idaho Aug. 12, 2015), and found the voluntary acts
by the plaintiff precluded a finding of constructive discharge. There, the elected Mayor of
Parma contended he was forced to resign in conjunction with stigmatizing statements
about conduct he engaged in prior to the election. Several city council members began
circulating a Recall Petition. Faced with a potential recall election based upon false
criminal charges, Flowers voluntarily resigned from his position as Mayor. Flowers
alleged the defendants violated his Due Process rights by making false public accusations
of criminal activities he allegedly committed, resulting in his constructive discharge or
forced resignation without an opportunity to be heard. The Court disagreed, because it
was “Flowers’ choice to resign as he was entitled to remain in office pending the
outcome of any recall election.” Slip. Op. at 16. Accordingly, the Court held Flowers had
not alleged any facts or circumstances rising to the level of constructive discharge or
coerced resignation, “particularly since the Recall Petition was not finalized before he
resigned.” Id. at 16-17.
Dew alleges he was subjected to discriminatory behavior by Edmunds during his
interview, akin to the false accusations levied at Flowers. Dew contends he was
humiliated and devalued during the interview process, and was so distraught “he decided
to withdraw his application from consideration for the Administrator position.” Am.
Compl. ¶ 116. But, contrary to Dew’s assertion, while he may have believed the
interview on September 4, 2014, was the last step in the hiring process, no one had
offered him the job. In other words, no final decision had been made. The Commissioners
MEMORANDUM DECISION AND ORDER - 14

needed to meet once again, and Dew was told it could be another week for that to occur.
Yet, like Flowers, Dew voluntarily withdrew his application before any final decision,
rubber stamp or otherwise, occurred. In this context, the Court finds Dew has not alleged
facts or circumstances supporting a finding of adverse action, which is an essential
element of his prima facie case.
Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782 (9th Cir. 1986), does not
help Dew here. Ruggles worked as a part time instructor for the University. She applied
for a tenure-track position. A few days after the period for submitting applications closed,
the faculty decided to eliminate the position for which Ruggles had applied. Ruggles
sued, alleging discrimination and retaliation based upon the University’s failure to hire
her. There, the court explained that, in the context of a retaliation cause of action alleging
a retaliatory failure to hire, the adverse employment decision was the “closing of the job
opening to her and the loss of opportunity even to compete for the position” based upon
her protected activities, which in that case consisted of a prior lawsuit for discrimination.
Ruggles, 797 F.2d at 786.
In contrast, Dew has not alleged a retaliatory failure to hire, and thus the standard
considered in Ruggles does not apply. And, even if the standard was applicable here, the
facts in Ruggles are distinguishable. The position of Administrator was not closed or
otherwise withdrawn to Dew as was the tenure-track position in Ruggles. In fact, the
IDOL later completed the decision making process, and hired Linda Goodman. As Dew’s
counsel admitted during the hearing, nothing precluded or prevented Dew from
remaining in contention for the position. Rather, after receiving positive feedback from
MEMORANDUM DECISION AND ORDER - 15

select Commissioners but before receiving a final response from the Commission, whom
he was told needed to meet again, Dew voluntarily withdrew his application. 4 Absent any
affirmative action by Edmunds, Parks, the Commission, or anyone else denying Dew the
position, the Court cannot on the facts as alleged find Dew could prove he suffered
adverse action. 5
Finally, the Court considers Dew’s argument that the futile gesture doctrine
provides support for his claims. Dew argues he withdrew his application because he
believed continuing with the hiring process would be a “futile gesture,” citing Internat’l
Brotherhood of Teamsters v. United States, 431 U.S. 324, 366 (1977), for support. There,
the United States Supreme Court considered a class action lawsuit alleging the employer
had engaged in a pattern or practice of discrimination such that the employer prevented
minorities from applying. The Supreme Court noted:
To conclude that a person’s failure to submit an application for a job does
not inevitably and forever foreclose his entitlement to seniority relief under
Title VII is a far cry, however, from holding that nonapplicants are always
entitled to such relief. A nonapplicant must show that he was a potential
4

The Commission is required to approve the appointment of an administrator. Idaho Code § 675905 (“Any decision by the director [of the department of labor] regarding the appointment and tenure of
the administrator shall be made with the advice and consent of the commission.”).
5

See, e.g., Jimenez v. Dyncor Internat’l, LLC, 635 F.Supp.2d 592, 608 (W.D. Tex. 2009). In that
case, a female police officer brought an action against her prospective employer, alleging discrimination
on the basis of sex. During the interview process, the plaintiff underwent a psychological evaluation and,
during the evaluation, the doctor asked her questions about her looks, her children, and her ability to work
in a male-dominated environment. Based upon the evaluation, the doctor recommended the plaintiff not
be hired, and she was not. The court found the plaintiff presented sufficient evidence to establish a prima
facie case of discrimination based upon gender because of the evaluator’s comments, coupled with the
decision not to hire her based upon the evaluator’s recommendation. 635 F.Supp.2d at 608. Here, in
contrast, even if the Court construes the comments made to Dew by Edmunds as reflecting discriminatory
animus, there was no adverse action. Neither Parks, Edmunds, nor the Commissioners affirmatively
denied Dew the job, as in Jimenez.

MEMORANDUM DECISION AND ORDER - 16

victim of unlawful discrimination. Because he is necessarily claiming that
he was deterred from applying for the job by the employer’s discriminatory
practices, his is the not always easy burden of proving that he would have
applied for the job had it not been for those practices.
International Broth. of Teamsters, 431 U.S. at 367-68. In other words, the plaintiff must
establish the inference that individual hiring decisions were made in pursuit of a
discriminatory policy so pervasive so as to dissuade persons from applying for the job. 6
Id. at 359, 368.
Here, in contrast, the conduct Dew complains of does not meet the threshold in
Teamsters. He has not identified a discriminatory policy or other pervasive atmosphere of
discrimination such that participation in the hiring process itself, or continuation of his
competition for the Administrator’s position, would have been futile for him. Rather, the
facts portray a hiring process and atmosphere devoid of discrimination, 7 unless and until
the Court accepts as true, as it must, Dew’s impression of Edmunds’s individual reaction
to Dew during the interview. Even construing Dew’s allegations in his favor, they fall far
short of supporting an inference that there was any policy or pervasive atmosphere of
discrimination effectively preventing disabled or gay individuals from being considered

6

The Court analogizes this theory to a claim of hostile work environment, such that the hiring
process itself was permeated with discriminatory animus.
7

Dew describes the interview process as positive, until he met with Edmunds.

MEMORANDUM DECISION AND ORDER - 17

and hired for the Administrator position. Rather, Dew describes the interview process as
positive, until he met with Edmunds. 8
Accordingly, Dew has not pled sufficient facts to state a claim for relief on Counts
I and II, and they will be dismissed. Although it does not appear he can plead sufficient
facts based upon the record, Dew will nonetheless be given an opportunity to amend as
explained below.
B.

Count V – Equal Protection Claim of Discrimination on the Basis of
Sexual Orientation and Qualified Immunity

Dew’s equal protection claim alleges Edmunds and Parks discriminated against
Dew on the basis of his sexual orientation. Am. Compl. ¶ 158. The Equal Protection
clause “commands that no State shall ‘deny to any person within its jurisdiction the equal
protection of the laws,’ which is essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,
439 (1985) (quoting U.S. Const., amend. XIV., § 1). Defendants contend they are
immune from suit on the basis of qualified immunity.
Rulings on the qualified immunity defense “should be made early in the
proceedings so that the costs and expenses of trial are avoided where the defense is
dispositive,” because the defense is “an immunity from suit rather than a mere defense to
8

Dew’s argument that discovery is necessary for him to learn what Parks and Edmunds discussed
after the interview is immaterial to what Dew knew at the time he withdrew his application. In other
words, Dew cannot prove futility with the benefit of hindsight. As in Jimenez, to justify the inference that
Edmunds’s comments were discriminatory in nature, adverse action (an affirmative denial of the position)
is required to support the inference—not Dew’s speculation that there would have been adverse action.
The same is true regarding Mackey’s comments about Parks’s reference inquiry notes. Iqbal and
Twombly require more than speculation. Adverse action—an affirmative act denying Dew the position—
is therefore required to move the allegations beyond mere speculation.

MEMORANDUM DECISION AND ORDER - 18

liability.” Saucier v. Katz, 533 U.S. 194, 200 (2001). A motion to dismiss on grounds of
qualified immunity may be granted where the allegations on the face of the complaint,
taken as true, are sufficient to show that the qualified immunity test is met. See Cooper v.
Pickett, 137 F.3d 616, 622 (9th Cir. 1997). However, an opportunity to amend to state a
plausible claim must generally be provided to a plaintiff if qualified immunity is asserted
in a motion to dismiss. See Moss v. U.S. Secret Service, 572 F.3d 962, 974–75 (9th Cir.
2009).
The doctrine of qualified immunity protects state officials from personal liability
for on-the-job conduct so long as the conduct is objectively reasonable and does not
violate an individual’s clearly-established federal rights. Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). Contrarily, a state official may be held personally liable in a § 1983
action if he knew or should have known that he was violating a plaintiff’s clearlyestablished federal rights. Id. True to its dual purposes of protecting state actors who act
in good faith and redressing clear wrongs caused by state actors, the qualified immunity
standard “gives ample room for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224,
227 (1991) (quotation omitted). Qualified immunity is a defense both to constitutional
claims and to statutory claims. See Lovelace v. Lee, 472 F.3d 174, 198-99 (9th Cir. 2006).
A qualified immunity analysis consists of two prongs: (1) whether, “[t]aken in the
light most favorable to the party asserting the injury, . . . the facts alleged show the
[defendant’s] conduct violated a constitutional right” ; and (2) whether that right was
clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by Pearson v.
MEMORANDUM DECISION AND ORDER - 19

Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009). Addressing the two prongs of the test in
this order is often beneficial, but it is not mandatory. Courts may “exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand.” Pearson,
129 S. Ct. at 818.
To determine whether the right was clearly established, the Court turns to
Supreme Court and Ninth Circuit law existing at the time of the alleged act. Osolinski v.
Kane, 92 F.3d 934, 936 (9th Cir. 1996). In the absence of binding precedent, the courts
should look to available decisions of other circuits and district courts to ascertain whether
the law is clearly established. Id.
The inquiry of whether a right was clearly established “must be undertaken in light
of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S.
at 201. For the law to be clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand” that his conduct violates
that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). It is not necessary that the
“very action in question has previously been held unlawful,” but “in the light of preexisting law the unlawfulness must be apparent” to the official. Id. A court need “not
require a case directly on point;” however, “existing precedent must have placed the
statutory or constitutional question beyond debate,” for a court to conclude that qualified
immunity does not apply. Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011). “The
relevant, dispositive inquiry is whether it would be clear to a reasonable officer that his

MEMORANDUM DECISION AND ORDER - 20

conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202 (citing
Wilson v. Layne, 526 U.S. 603, 615 (1999)).
Defendants claim they are entitled to qualified immunity because the right to be
free from discrimination in employment based on sexual orientation was not clearly
established at the time of the alleged conduct, and because the facts do not establish a
constitutional violation. In response, Dew argues that, under SmithKline Beecham Corp.
v. Abbott Labs, 740 F.3d 471, 483 (9th Cir. 2014), and this Court’s decision in Latta v.
Otter, 19 F.Supp.3d 1054 (D. Idaho May 13, 2014), cert. denied, Otter v. Latta, 135 S.Ct.
2931 (June 30, 2015), the constitutional right to be free from discrimination based on
sexual orientation during the hiring process was clearly established in the Ninth Circuit at
the time of the alleged conduct.
As explained above, the Court has found that the facts as alleged in the Amended
Complaint, if proved, would not support a finding of adverse action. Without such facts,
the Court cannot find a constitutional violation. However, even if the facts supported
such a finding, the Court disagrees with Dew’s assertion that the law regarding sexual
orientation discrimination in the employment context was clearly established at the time
Dew applied for the Administrator position in September of 2014.
Dew’s response to Defendants’ motion highlights the tumultuous times
surrounding LGBT rights in Idaho, both during the time of his application and continuing
to the present. Dew notes Parks was outspoken during the late fall of 2013, advocating in
support of the “Add the Words” campaign for including sexual orientation as a protected

MEMORANDUM DECISION AND ORDER - 21

class for employment, housing, and other civil rights in Idaho. 9 No such law has been
adopted by the Idaho Legislature, 10 and Parks’s endorsement in the face of the defeat of
the Add the Words campaign hardly suggests clearly established law. Further, it was not
until July of 2015 that the United States Equal Employment Opportunity Commission 11
ruled in a groundbreaking decision that sexual orientation discrimination by Federal
employers is barred by existing Title VII law. 12 Given the turbulent Add the Words
campaign, and the lack of any legislative action, it can hardly be said that reasonable
officials would undoubtedly have known that discrimination based upon sexual
orientation during the hiring process violated clearly established rights.
Dew’s reliance upon SmithKline, issued January 21, 2014, and this Court’s
decision in Latta, issued May 13, 2014, as a basis for his argument that the law was
clearly established by the fall of 2014 when Dew submitted his application, stretches
those decisions too far. While Dew is correct that SmithKline, a case about discriminatory
jury selection based upon sexual orientation, subjected such classifications to heightened
scrutiny, the case is limited to its context. SmithKline addressed purposeful
discrimination and the perpetuation of impermissible stereotypes in the context of a
9

In fact, Dew cites Parks’s outspoken public support for LGBTQ individuals during October and
November of 2013, including her public statements that sexual orientation should be considered a
protected class. Response at 15. (Dkt. 25.)
10

In contrast, a growing number of municipalities in Idaho have adopted such ordinances.

11

The EEOC’s rulings are not binding upon Federal Courts. Univ. of Tennessee v. Elliott, 478
U.S. 788, 793 (1986); N. Cal. River Watch v. Wilcox, 633 F.3d 766, 780 (9th Cir. 2011) (agency’s
construction of a statute merits “some deference” but is not binding).
12

Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397640 (July 15, 2015).

MEMORANDUM DECISION AND ORDER - 22

Batson challenge during jury selection. Latta v. Otter, 19 F.Supp.3d at 1076 (D. Idaho
2014). SmithKline did not, however, indicate that the level of scrutiny applied in the
context of a Batson challenge applies to every case of alleged sexual orientation
discrimination.
Similarly, Latta, and by extension, Obergefell v. Hodges, 135 S.Ct. 2584 (June 26,
2015), do not establish a broad right to be free from sexual orientation discrimination in
all contexts. Rather, Latta and Obergefell involved sexual orientation discrimination in
the context of categorical denials of the right to marry and substantive due process under
the Fourteenth Amendment to the United States Constitution. Here, there is no evidence
of any policy, rule or law imposed or followed by the Idaho Commission on Human
Rights or the Department of Labor that precluded the employment of gays or lesbians.
Instead, the evidence put forth by Dew himself supports the inference that Parks,
personally and on behalf of the ICHR, believed the law should protect LGBT individuals
from discrimination in employment and was advocating for such protections under Idaho
law. This alone confirms the law was not clearly established at the time Dew applied for
the Administrator’s position. 13
The mere fact that SmithKline and Latta had been decided prior to Dew’s
employment interviews in August of 2014 does not establish reasonable officials in
Parks’s or Edmunds’s positions would have known their alleged conduct during the
hiring process was clearly unconstitutional. In fact, the debate continues, both in Idaho
13

In other words, the Court is aware of no specific right to a hiring process blind to Dew’s sexual
orientation, nor has Dew cited to any authority establishing such a right.

MEMORANDUM DECISION AND ORDER - 23

and elsewhere, regarding sexual orientation discrimination in contexts such as
employment, housing, and consumer services. 14 Al-Kidd, 131 S.Ct. at 2083
(constitutional question must be “beyond debate” to support a finding that every
reasonable official would know that what he is doing violates a constitutional right).
Consequently, even if the Court found Dew has alleged facts that could prove a
constitutional violation (which it did not), Parks and Edmunds would be entitled to
qualified immunity with respect to Dew’s § 1983 Equal Protection claim asserted in
Count V.
C.

Count III – State Law Claim for Emotional Distress

Dew’s third cause of action raises a state law claim for negligent infliction of
emotional distress. Defendants argue, because all of the constitutional and statutory
claims should be dismissed, the Court should not exercise supplemental jurisdiction over
the remaining state law claim. Dew agrees that his emotional distress claim is subject to

14

In fact, one has only to perform a Google search for “debate continues regarding sexual
orientation discrimination” to find a host of articles from around the country discussing the debate over
sexual orientation discrimination. The three cited here are the top ranking articles resulting from that
search performed on October 7, 2015, at www.google.com: Jason Hancock, Heated Gay Rights Debate
Continues in Missouri and Many Other States, THE KANSAS CITY STAR (April 19, 2015),
http://www.kansascity.com/news/government-politics/article18993843.html (“29 states — including
Missouri and Kansas— have no statewide law barring discrimination on the basis of sexual orientation or
gender identity. That means a person can be fired from a job, evicted from an apartment or kicked out of a
restaurant for being gay or being perceived to be gay.”) (article attached); Hayley Miller, Following
SCOTUS Ruling, Michigan Continues Debate on Discriminatory Religious Freedom Bill, Human Rights
Campaign Blog (July 1, 2015), http://www.hrc.org/blog/entry/following-scotus-ruling-michigancontinues-debate-on-discriminatory-religio; Zac Anderson, Gay Marriage Debate Continues in Florida,
HERALD-TRIBUNE (March 13, 2015), http://politics.heraldtribune.com/2015/03/13/gay-marriage-debatecontinues-in-florida/ (article attached).

MEMORANDUM DECISION AND ORDER - 24

dismissal if his ADA, Title VII, IHRA, and Equal Protection claims are dismissed.
Response at 16. (Dkt. 25.) 15
Supplemental jurisdiction exists where jurisdiction is exercised over a claim that is
part of the same case or controversy as another claim over which the court has original
jurisdiction. BLACK’S LAW DICTIONARY, p. 931, 9th ed.; see also 28 U.S.C. § 1367.
Section 1367(c) identifies four grounds for declining supplemental jurisdiction where the
claim raises a novel or complex issue of state law; the claim substantially predominates
over the claim or claims over which the district court has original jurisdiction; the district
court has dismissed all claims over which it has original jurisdiction; or in exceptional
circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. §
1367(c).
Here, the state law claim for emotional distress is inextricably intertwined with
Dew’s ADA, Title VII, and Section 1983 claims. Dew alleges the manner in which
Defendants treated him caused him emotional distress. Dew concedes if his federal
claims are dismissed, then the underpinning for the negligent infliction of emotional
distress claim evaporates. Because the Court determines Counts I, II, and V are subject to
dismissal, so too is the emotional distress claim. Therefore, the Court need not reach
Defendants’ additional arguments, which assert sovereign immunity, immunity from
liability under the Idaho Tort Claims Act, and failure to allege sufficient facts to establish
a claim for negligent infliction of emotional distress.
15

Dew has a lawsuit pending in state court as well. To the extent he is pursuing a claim for
infliction of emotional distress in state court, the dismissal will be without prejudice.

MEMORANDUM DECISION AND ORDER - 25

CONCLUSION
For the reasons explained herein, Dew’s claims pled in Counts I, II, III, and V in
this matter will be dismissed. Count IV will be dismissed based upon Dew’s voluntary
withdrawal of the same. If Dew can, within the guidelines explained by the Court,
sufficiently plead facts to establish his claims, he may file an amended complaint within
thirty days. However, it may be exceedingly difficult to state a claim based upon the facts
alleged. This is not a case where more detail would suffice. But, in light of Ninth Circuit
precedent, the opportunity to do so will not be foreclosed.

MEMORANDUM DECISION AND ORDER - 26

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Defendants’ Motion to Dismiss (Dkt. 19) is GRANTED, and the Amended
Complaint (Dkt. 4) is DISMISSED without prejudice.

2)

Plaintiff may file an amended complaint by November 6, 2015. If Plaintiff
does not amend his Complaint within that time period, Counts I, II, IV, and
V will be dismissed with prejudice, and Count III will be dismissed without
prejudice.
October 08, 2015

MEMORANDUM DECISION AND ORDER - 27