Dorsch v. State of Idaho Department of Fish and Game

Filing 25

MEMORANDUM DECISION AND ORDER. It is hereby ORDERED, that the motion for partial summary judgment (docket no. 15 ) is GRANTED IN PART AND DENIED IN PART. Signed by Judge B. Lynn Winmill. (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

DANIELLE DORSCH,
Case No. 1:17-CV-428-BLW
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER

STATE OF IDAHO DEPARTMENT OF
FISH AND GAME,
Defendant.

INTRODUCTION
The Court has before it a motion for partial summary judgment filed by the State
of Idaho. The Court held oral argument on the motion on December 17, 2018, and took
the motion under advisement. For the following reasons, the Court will grant the motion
in part, holding that several of the claims are time-barred, but deny the motion to the
extent it seeks dismissal of the claim that the Did-Not-Achieve performance evaluation
was retaliatory in violation of the Idaho Human Rights Act.
LITIGATION BACKGROUND
The plaintiff Danielle Dorsch claims that during her employment with the Idaho
Department of Fish & Game (IDFG), she was consistently denied promotion and transfer
opportunities because of her gender, was subjected to a hostile work environment, and
was ultimately fired in retaliation for complaining about this to IDFG management.

Dorsch was originally hired by the IDFG in 2008, working as a Fish Culturist at the
IDFG’s Sawtooth Fish Hatchery, near Stanley, Idaho. Over the next eight years, she
often applied for promotions and transfers. She alleges that most of her applications were
rejected because of her gender and in retaliation for complaining about that
discrimination. She also alleges that during her eight years with the agency, she was
subjected to a hostile work environment, leading to her resignation in 2016.
She has filed this lawsuit against the IDFG alleging violations of Title VII and the
Idaho Human Rights Act. The IDFG has responded with a motion for partial summary
judgment, seeking to dismiss some claims either for failing to have any support in the
record or for failing to comply with the time limits imposed by statutes of limitations.
The IDFG’s motion is a partial motion because it does not address several claims in the
complaint. The Court will consider each of IDFG’s arguments below.
ANALYSIS
Nine Claims for denial of transfer/promotion from 2010 to 2015
Dorsch claims that the IDFG’s rejection of her nine applications for promotion and
transfer between March 2010 and July 2015 were based on her gender and hence
discriminatory in violation of Title VII and the IHRA. Dorsch has made other claims for
discrimination based on more recent rejections, but the nine rejection claims between
2010 and 2015 are the only claims challenged by the IDFG at this time as time-barred
under the statute of limitations.
Title VII prohibits a lawsuit unless the plaintiff previously filed the charges with
the EEOC within 300 days after the occurrence of the allegedly discriminatory act.

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)(citing 42 U.S.C. §
2000e–5(e)(1)). The IHRA prohibits a lawsuit unless the plaintiff previously filed a
complaint with the Idaho Human Rights Commission (IHRC) with one year of the
alleged unlawful discrimination. See Idaho Code § 67–5907(1).
It is undisputed that for the nine rejections challenged in this motion, all occurred
more than a year before Dorsch filed her complaint with the IHRC and more than 300
days before she filed her charge with the EEOC. Dorsch responds that even if she cannot
seek an independent recovery for these claims, she can nevertheless admit them into
evidence in support of timely claims. But that evidentiary issue is not before the Court at
this time, and the Court expresses no opinion on it. The Court is holding here that the
nine rejections from March 2010 to July 2015 are time-barred under both Title VII and
the IHRA. The Court will therefore grant this portion of the IDFG’s motion for partial
summary judgment.
Comment by Christopher Jeszke
Dorsch complains that her manager at the Magic Valley Hatchery, Christopher
Jeszke, made disparaging comments based on her gender in violation of Title VII and the
IHRA. The comments were made in 2013, and it is undisputed that they were made more
than a year before Dorsch filed her claim with the IHRC and more than 300 days before
she filed her charge with the EEOC. Dorsch responds that the comments are evidence of
a hostile work environment. But that evidentiary issue in not before the Court at this
time, and the Court expresses no opinion on it. The Court is holding here that the 2013
comments by Jeszke cannot constitute an independent discriminatory act based on gender

under Title VII or the IHRA because they are time-barred. The Court will therefore grant
that portion of the IDFG’s motion for partial summary judgment.
Recordings
Dorsch received a warning letter from the IDFG on August 6, 2015, directing her
to stop recording conversations in the workplace with IDFG employees. Dorsch claims
she was recording conversations in an effort to support her discrimination claims. She
argues that the warning letter was retaliatory under Title VII and the IHRA because it
was imposed only after she had complained about discrimination, and she was the only
employee who was subject to such a restriction. She seeks recovery for this restriction up
until the time the IDFG imposed the recording restriction on all employees pursuant to an
agency-wide rule issued in January of 2016.
It is undisputed that the warning letter was issued more than a year before Dorsch
filed her complaint with the IHRC and more than 300 days before she filed her charge
with the EEOC. Dorsch argues, however, that each day the recording restriction was in
effect constitutes a new retaliatory act, and these continuing violations extend the time for
filing, making her filings with the EEOC and IHRC timely.
The Court disagrees. The limitations period begins on the date the act happened,
even if there are potential effects of the decision thereafter. See Morgan, 536 U.S. at 109.
“Mere continuity of employment, without more, is insufficient to prolong the life of a
cause of action for employment discrimination.” See Delaware State College v. Ricks,
449 U.S. 250, 257(1980).

Consequently, the Court will hold that the August 2015 warning letter restricting
Dorsch from recording workplace conversations cannot constitute an independent
discriminatory or retaliatory act under Title VII or the IHRA because the claim is timebarred. The Court will therefore grant that portion of the IDFG’s motion for partial
summary judgment.
Does-Not-Achieve (DNA) Evaluation
In October of 2015, the IDFG gave Dorsch a poor performance evaluation,
referred to as a Does-Not-Achieve (DNA) evaluation. The DNA covered Dorsch’s work
performance from November of 2014 to October of 2015. It was critical of several areas
of Dorsch’s work performance, specifically noting her lack of ability to perform basic
fish culture math, lack of attention to detail, poor judgment, lack of accountability,
defensive behavior, and poor time management.
The IDFG argues that this claim is time-barred under Title VII. If the limitation
period begins in October of 2015 when Dorsch received the DNA, her EEOC claim was
beyond the 300-day limit. But Dorsch argues that the limitations period begins on
December 10, 2015, when she completed her appeals – a process known as the ProblemSolving Procedure – and the decision was finalized. If that date is used, her EEOC
charge is timely.
But Dorsch’s argument was expressly rejected in Delaware State College v. Ricks,
449 U.S. 250 (1980). The plaintiff there made the same argument that Dorsch makes
here – that the limitations period should be tolled while an appeal process was underway
to reverse or modify the original decision. The Supreme Court rejected the argument,

holding that “the pendency of a grievance, or some other method of collateral review of
an employment decision, does not toll the running of the limitations periods.” Id. (citing
Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, (1976)). The Title VII claim
that relies on the issuance of the DNA must therefore be dismissed as time-barred.
The IDFG concedes that Dorsch timely filed a charge regarding the DNA with the
IHRC. The IDFG’s motion seeks a finding that the DNA retaliation claim under the
IHRA is not actionable as a matter of Idaho law.
The IDFG claims that under Idaho case law, a poor performance evaluation issued
after an employee complains about discrimination cannot be retaliatory if a similar poor
performance evaluation was issued prior to the employee’s complaints. See Mendez v.
Univ. Servs. Boise State Univ., 409 P.3d 817, 824 (2018). But Mendez was a pro se case
where the plaintiff presented nothing to substantiate his retaliation claims. Here Dorsch
has submitted evidence challenging the DNA.
Mendez is distinguishable for another reason. While it is true that Dorsch received
an earlier poor performance evaluation – issued prior to her complaints – she claims that
she improved her performance from that earlier evaluation and yet received the same
poor evaluation in October of 2015 in retaliation for complaining about discrimination.
Her claims raise questions of fact about whether the October 2015 DNA was retaliatory
under the IHRA. The Court will therefore deny the IDFG’s motion for partial summary
judgment on the claim that the October 2015 was retaliatory in violation of the IHRA, but
will grant partial summary judgment on the claim that it was retaliatory in violation of
Title VII.

Conclusion
The Court will therefore grant in part the IDFG’s motion for partial summary
judgment, and make the following rulings: (1) The nine times Dorsch was rejected by the
IDFG for promotion or transfer between March 2010 and July 2015 are time-barred
under both Title VII and the IHRA; (2) The 2013 comments by Christopher Jeszke
cannot constitute independent discriminatory acts under Title VII or the IHRA because
they are time-barred; (3) The August 2015 warning letter restricting Dorsch from
recording workplace conversations cannot constitute an independent discriminatory act
under Title VII or the IHRA because the claim is time-barred; (4) The claim that the
October 2015 DNA was retaliatory in violation of Title VII is time-barred.
The Court will deny the motion to the extent it seeks a ruling that October 2015
DNA was retaliatory in violation of the IHRA.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for partial
summary judgment (docket no. 15) is GRANTED IN PART AND DENIED IN PART. It
is granted to the extent it seeks the following rulings: (1) The nine times Dorsch was
rejected by the IDFG for promotion or transfer between March 2010 and July 2015 are
time-barred under both Title VII and the IHRA; (2) The 2013 comments by Christopher
Jeszke cannot constitute independent discriminatory acts under Title VII or the IHRA
because they are time-barred; (3) The August 2015 warning letter restricting Dorsch from
recording workplace conversations cannot constitute an independent discriminatory act

under Title VII or the IHRA because the claim is time-barred; (4) The claim that the
October 2015 DNA was retaliatory in violation of Title VII is time-barred. The Court
will deny the motion to the extent it seeks a ruling that October 2015 DNA was
retaliatory in violation of the IHRA.

DATED: January 8, 2019

_________________________
B. Lynn Winmill
U.S. District Court Judge