Berger v. Madison County et al

Filing 32

ORDER granting in part and denying in part 23 Motion for Summary Judgment. The Clerk is directed to terminate Defendant Tony Pozenel as a party defendant to this action. A five (5) day jury trial will be set in Pocatello, Idaho by separate order. Signed by Judge Candy W. Dale. (klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MISTY BERGER, an individual,
Case No. 4-12-cv-00535-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
MADISON COUNTY, a political
subdivision of the state of Idaho,
BRENT MCFADDEN, individually and
in his official capacity, TONY
POZENEL, individually and in his
official capacity,
Defendants.

INTRODUCTION
Before the Court is Defendants’ Motion for Summary Judgment, filed on August
26, 2013. (Dkt. 23.) Plaintiff Misty Berger’s complaint against her employer, Madison
County, and two county officials, alleges her employment was wrongfully terminated.
Her three causes of action assert deprivation of property rights without due process;
retaliation for the exercise of her first amendment right to free speech; and violation of
Idaho’s whistleblower act.

MEMORANDUM DECISION AND ORDER - 1

The Court conducted a hearing on January 14, 2014, at which counsel for the
parties appeared and presented oral argument. The matter involves a factual dispute over
Berger’s job termination, the resolution of which is distilled to a question of credibility
and weight of the evidence. After carefully considering the parties’ arguments, their
written briefs, and applicable authorities, the Court will grant the motion in part, and
deny the motion in part.
FACTS1
Misty Berger commenced work for Defendant Madison County on April 11, 2004,
as a seasonal, temporary maintenance laborer for Madison County’s parks and recreation
department. Aff. of Hall Ex. C, Berger Depo. at 34 (Dkt 23-12.)2 Her duties included
park reservations, events, interfacing with the public, park maintenance and cleaning,
purchases for the department, and collection of park entry fees. Id., Berger Depo. at 20,
44, 73. In late 2005, Berger was promoted to a supervisor position within the parks and
recreation department. Id. at 44-45. In February of 2011, Defendant Brent McFadden was
selected to become the Director of County Services. In that position, McFadden became
Berger’s direct supervisor. Compl. ¶¶ 10, 12.
On March 28, 2011, Berger voiced her opinion at a meeting with the County
Commissioners that she did not believe McFadden was qualified for the position, and that
McFadden had made threats to fire her and other employees if they “went over his head.”
1

The following facts are undisputed and material for purposes of Defendants’ motion.

The Affidavit of Blake Hall, (Dkt. 23-3), contains the cited portions of Misty Berger’s
deposition at Exhibit C, found at Dkt. 23-12.
2

MEMORANDUM DECISION AND ORDER - 2

Berger Depo. at 97-99 (Dkt. 23-12); Aff. of Lewies Ex. E, Berger Depo. at 91 (Dkt. 257);3 Compl. ¶11. McFadden, however, was promoted to the position of General Services
Director, becoming Berger’s permanent supervisor, on March 28, 2011. Comp. ¶12.
Certain employees could use the County’s credit card for official business. The
County credit card statement dated March 26, 2011, and Request for Reimbursement
dated April 5, 2011, show a charge for an airline ticket for McFadden and his spouse,
each in the amount of $320.80. Compl. ¶¶ 16, 18; Aff. of Hall Ex. A (Dkt. 23-5 at 4); Ex.
D, McFadden Depo. at 7-8 (Dkt. 23-14.) McFadden was traveling on official business,
and Mrs. McFadden was accompanying him. McFadden Depo. at 8 (Dkt. 23-14).
McFadden stated that he received authorization from the county clerk’s office and the
county commissioners to use the county credit card to purchase his wife’s ticket,
provided he paid the bank card issuer directly when the bill arrived. Id. at 9-10.4 The
Request for Reimbursement McFadden submitted indicates that on April 5, 2011, Mrs.
McFadden issued a personal check to reimburse the $320.80 directly to the bank card
company, and the County’s credit card payment did not include payment for Mrs.
McFadden’s ticket. Aff. of Hall Ex. A (Dkt. 23-5 at 4); McFadden Depo. at 8 (Dkt. 2314). The request for reimbursement notes in the upper left corner that it was approved on

The Affidavit of Karl Lewies (Dkt. 25-2) contains additional portions of Misty Berger’s
deposition at Exhibit E, found at Dkt. 25-7.
3

Berger contends in her Response to Defendants’ Statement of Facts, ¶¶ 2-3, that she disputes
whether she was “informed” about the prior approval given to McFadden to use the County credit card to
purchase a flight for his wife, but she does not dispute McFadden’s statement that he received advance
permission.
4

MEMORANDUM DECISION AND ORDER - 3

April 11, 2011, “by Commissioners.” Id. (Dkt. 23-5 at 4). The credit card payment was
not due until April 17, 2011. Id.
On May 9, 2011, Berger attended a meeting with the County Commissioners and
reported McFadden’s use of the County’s credit card to purchase an airline ticket for his
wife. Berger Depo. at 106-108 (Dkt. 23-12); Berger Depo. at 90-91, 124 (Dkt. 25-7.)
McFadden and Troy Evans, the Madison County Prosecuting Attorney, were present at
the May 9th meeting. Berger Depo. at 108 (Dkt. 23-12.) Berger described the
Commissioners as “appalled,”5 but that she was verbally reprimanded by the
commissioners for reporting the credit card incident. Berger Depo. at 108, 125-126 (Dkt.
25-7.) Berger believed the commissioners were covering up wrongdoing. Id. The County
personnel policy indicates that use of the County’s card for employee personal purchases
constitutes misuse. Aff. of Hall Ex. A (Dkt. 23-5 at 14; 23-10 at 4, 6.)
On December 11, 2011, Berger was suspected of mishandling pubic funds, and
placed upon administrative suspension without pay. Berger Depo. at 46 (Dkt. 23-12);
McFadden Depo. Ex. 7 (Dkt. 25-8.) On February 16, 2012, Berger received a Notice of
Proposed Personnel Action indicating she was subject to termination for mishandling
public funds, among other policy violations. (Dkt. 25-8 at 10.) Berger appealed the
Notice, and a hearing was conducted. McFadden Depo. Ex. 7 (Dkt. 25-8 at 10.)

5

There was no follow up question asked to clarify whether Berger meant the Commissioners
were appalled that she reported the incident, or appalled because McFadden used the County credit card
for the airline purchase.

MEMORANDUM DECISION AND ORDER - 4

While on suspension, Defendant Pozenel cleaned out Berger’s desk, and destroyed
pages from a notebook found on her desk. Compl. ¶¶ 36-37. The notebook was Berger’s
personal property, and Berger reported the destruction of her notebook to law
enforcement. Compl. ¶ 38-39. No charges against Pozenel were ever filed. See SOF ¶¶ 8,
9, and response (Dkt. 23-2; 25-1.)
On April 25, 2012, the County reinstated Berger’s employment as the Parks and
Recreation supervisor. McFadden Depo. Ex. 7 (Dkt. 25-8.) She was placed upon
probationary status for six months. Id. Berger returned to work on April 30, 2012. Berger
Depo. at 46-47 (Dkt. 23-12). Berger claims she was “set up to fail” upon reinstatement to
her position. Id., Berger Depo. at 116 (Dkt. 23-12.)
On April 30, 2012, Berger reported to law enforcement that she suspected
McFadden of improper use of the county credit card. (Dkt. 23-4 at 13); Berger Depo. at
109, 114 (Dkt. 23-12.) Berger waited to report McFadden’s credit card use to law
enforcement over one year after the incident because she was afraid of losing her job,
Berger Depo. at 127 (Dkt. 25-7), but decided to report it because her relationship with
McFadden was “rapidly deteriorating,” Berger Depo. at 109 (Dkt. 23-12).6 An
investigation by law enforcement ensued, during which McFadden was interviewed, and
law enforcement did not pursue charges. Berger Depo. at 115 (Dkt. 23-12); McFadden
Depo. at 32-33 (Dkt. 25-8). A news story was published on May 7, 2012, indicating that

At the hearing, Berger’s counsel reported an additional reason supporting why Berger waited to
report the incident to law enforcement. However, the statements by counsel were not part of the record,
and the Court ruled that it would not consider the comments by counsel.
6

MEMORANDUM DECISION AND ORDER - 5

McFadden was cleared of any charges; both Berger and McFadden saw the news report
when it was published that day. Berger Depo. at 115 (Dkt. 23-12); McFadden Depo. at 37
(Dkt. 25-8).
On May 7, 2012, McFadden met with Berger and asked why she had disobeyed
his directive and cleaned the park restrooms on Thursday instead of on Friday, according
to the schedule McFadden had established. Berger Depo. at 89 (Dkt. 25-7); McFadden
Depo. at 51 (Dkt. 25-8.) Also, McFadden informed Berger she would be reporting in the
future to Pozenel, and not directly to McFadden. Berger Depo. at 89 (Dkt. 25-7.) Berger
believed she was being demoted, but she was not told that her pay would be reduced. Id.
at 123 (Dkt. 25-7.) During the course of the meeting, Berger “told [McFadden] to ‘pound
sand.’” Id. Berger stated also that “we could buy her out and be done with her.”
McFadden Depo. Ex. 10 (Dkt. 25-8.). McFadden then informed Berger her employment
was terminated. Id. Pozenel and another county employee, Trish van Wagner, were
present with McFadden during this meeting. Id.
A Notice of Proposed Personnel Action (Second Notice of Action) was prepared
and issued on May 7, 2012. Berger Depo. at 47, Ex. 7 (Dkt. 23-13); Berger Depo. at 92
(Dkt. 25-7.) According to the Notice, Berger was notified that her employment would be
terminated for failing to accept reorganization and for insubordination. Id. (Dkt. 23-13.)
On May 16, 2012, Berger was formally notified that her employment would be
terminated consistent with the May 7, 2012, Second Notice of Action. Id, Berger Depo.
Ex. 9 (Dkt. 23-13.)

MEMORANDUM DECISION AND ORDER - 6

ANALYSIS
1.

Summary Judgment Standards
A principal purpose of summary judgment is to “isolate and dispose of factually

unsupported claims ....” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (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; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986).
The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).
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. 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 its favor. Anderson, 477 U.S. at 256–57. The non-moving party
must go beyond the pleadings and show “by [its] affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine issue of material fact
exists. Celotex, 477 U.S. at 324.
MEMORANDUM DECISION AND ORDER - 7

The party bearing the burden of proof at trial “must establish beyond controversy
every essential element of its ... claim.” S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d
885, 889 (9th Cir. 2003) (adopting decision of district court “as our own”). A party who
does not have the burden “may rely on a showing that a party who does have the trial
burden cannot produce admissible evidence to carry its burden as to the fact.” Fed. R.
Civ. P. 56(c)(1)(B) (advisory committee’s note.)
As a general rule, the “party opposing summary judgment must direct [the
Court’s] attention to specific triable facts.” S. Cal. Gas Co., 336 F.3d at 889. An
exception to this rule exists when cross-motions for summary judgment are filed. In that
case, the Court must independently review the record for issues of fact. Fair Housing
Council of Riverside Co., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
Cross-motions for summary judgment—where both parties essentially assert that there
are no issues of material fact—does not vitiate the court’s responsibility to determine
whether disputed issues of material fact are present. Id.
2.

Due Process Claim Under the Fourteenth Amendment
Berger’s second cause of action alleges deprivation of her property rights without

due process under the Fourteenth Amendment. Compl. ¶ 43. Berger claims she
maintained a personal journal in a notebook that she kept at work. Berger alleges that
another county employee, Defendant Tony Pozenel, was directed by Defendant
McFadden to clean out her desk while she was on suspension, and that when she
returned, she discovered her journal was missing. Berger learned later that her journal
had been destroyed because Pozenel had removed the pages containing the journal from
MEMORANDUM DECISION AND ORDER - 8

the notebook. Berger claims she has a constitutionally protected property interest in her
journal. Compl. ¶ 41.
The Fourteenth Amendment to the United States Constitution protects individuals
from the deprivation of liberty or property by the government without due process. A
Section 1983 claim based upon procedural due process contains three elements: (1) a
liberty or property interest protected by the United States Constitution; (2) a deprivation
of that interest by the government; and (3) a denial of adequate procedural protections.
Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). To state a claim,
Berger first must establish she possessed a property interest deserving of constitutional
protection. Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 982
(9th Cir. 1998); see also Gilbert v. Homar, 520 U.S. 924, 928–29 (1997). If a property
interest exists, the essential requirements of due process are notice and an opportunity to
respond. See Cleveland Bd. of Educ. v. Loudermill et al., 470 U.S. 532, 546 (1985). The
Due Process Clause does not create substantive property rights; property rights are
defined instead by reference to state law. Portman, 995 F.2d at 904.
A prerequisite, therefore, is determination of whether Berger possessed a
constitutionally protected property interest in her journal, an item of personal property.
See Dyack v. Commonwealth of N. Mariana Islands, 317 F.3d 1030, 1033 (9th Cir. 2003)
(citing Loudermill, 470 U.S. at 538). The destruction of Berger’s personal property---her
journal---is not an act of constitutional dimension. The United States Supreme Court has
consistently held that the negligent or intentional deprivation of personal property
without due process is not a cause of action protected by the Constitution, so long as
MEMORANDUM DECISION AND ORDER - 9

there is a state remedy.7 Mertens v. Shensky, No. CV-05-147-N-EJL, 2006 WL 173651
*2 (D. Idaho Jan. 23, 2006) (citing Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127
L.Ed.2d 114 (1994).
Berger has failed to state a claim under the Fourteenth Amendment against
Defendants. Because this claim was the only count asserted against Defendant Pozenel,
he should be dismissed as a named defendant from the lawsuit. 8
2.

Retaliation for Exercise of Free Speech Under the First Amendment
Berger alleges that, when she reported McFadden’s suspected misuse of public

funds to the Madison County Sherriff’s Office, she was speaking as a private citizen on a
matter of public concern, and then terminated from employment because of the exercise
of her First Amendment rights. (Compl. ¶¶ 28-30.) To state a claim against an employer
for violation of the First Amendment, Berger must show (1) that she engaged in protected
speech; (2) that the employer took “adverse employment action;” and (3) that her speech
was a “substantial or motivating” factor for the adverse employment action. Coszalter v.
City of Salem, 320 F.3d 968, 973 (9th Cir. 2003).
7

Berger reported the missing notebook to the police, suggesting she believed the destruction
constituted theft. Alternatively, Berger may be able to obtain redress under the Idaho Tort Claims Act for
an alleged tortious deprivation of her personal property. See Carr v. Tousley, No. CV–06–0125-S-JLQ,
2009 WL 1514661 *35 (D. Idaho May 27, 2009) (holding that prison inmate had no due process claim
against jail officials for the removal of his personal property during a search of his cell, and could bring a
claim under the Idaho Tort Claims Act instead).
The parties did not brief the issue of Berger’s constitutionally protected property right in her
personal journal. Instead, they argued that Pozenel was merely negligent, and that the unintentional act of
destroying Berger’s personal property did not constitute a violation of due process under the Fourteenth
Amendment. But Berger’s interest in her journal does not rise to the level of a constitutionally protected
property right. The Court inquired of the parties at the hearing, and Berger conceded that if the due
process claim was dismissed, Defendant Pozenel could be dismissed as a named defendant.
8

MEMORANDUM DECISION AND ORDER - 10

For the speech to be protected at step one, the Court must determine (1) whether
the speech at issue “‘touch[ed] on a matter of public concern;’” if so, (2) whether “‘the
interests of the [employee], as a citizen, in commenting upon matters of public concern
[outweighed] the interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees;’” and (3) whether the employee spoke
as a public employee or instead as a private citizen. Posey v. Lake Pend Oreille School
Dist. No. 84, 546 F.3d 1121, 1127 (9th Cir. 2008). Once the employee establishes the first
three elements, the burden shifts—the government can escape liability by showing that it
would have taken the same action even in the absence of the protected conduct. Keyser v.
Sacramento City Unified School Dist., 265 F.3d 741, 750 (9th Cir. 2001).
An employee’s speech is protected under the First Amendment if it addresses “a
matter of legitimate public concern.” Pickering v. Bd. of Educ., 391 U.S. 563, 571 (1968).
“[S]peech that concerns ‘issues about which information is needed or appropriate to
enable the members of society’ to make informed decisions about the operation of their
government merits the highest degree of first amendment protection.” McKinley v. City of
Eloy, 705 F.2d 1110, 1114 (9th Cir.1983) (quoting Thornhill v. Alabama, 310 U.S. 88,
102 (1940)). On the other hand, speech that deals with “individual personnel disputes and
grievances” and that would be of “no relevance to the public’s evaluation of the
performance of governmental agencies” is generally not of “public concern.” Id. The
determination of whether an employee’s speech deals with an issue of public concern is
made with reference to “‘the content, form, and context’” of the speech. Allen, 812 F.2d
at 430 (quoting Connick, 461 U.S. at 147). The Court finds, for purposes of the County’s
MEMORANDUM DECISION AND ORDER - 11

motion, Berger spoke to both the Commissioners and law enforcement about a matter of
public concern. See Keyser, 265 F.3d at 750 (discussing allegations of misuse of public
funds).
The second element of protected speech is whether the employee spoke in her
capacity as an employee or a citizen. If the employee’s speech constitutes “work product”
that “owes its existence to [an employee]’s professional responsibilities,” the speech falls
within an employee’s job responsibilities and thus outside of the sphere of First
Amendment protection. Posey, 546 F.3d at 1127. The determination whether the speech
was spoken as a public employee or a private citizen is a mixed question of fact and law.
Id. at 1129.
In this case, Berger alleges she was speaking as a citizen on a matter of public
concern when she reported McFadden’s suspected misuse of public funds to law
enforcement.9 Compl. ¶ 28. See Posey, 546 F.3d at 1130 (commenting that
“‘communication on matters relating to the functioning of government ...’ [such as]
misuse of public funds, wastefulness, and inefficiency in managing and operating
government entities are matters of inherent public concern.”). Further, Berger’s speech
did not concern matters related to her employment duties as a parks and recreation
supervisor. See Posey, 546 F.3d at 1129 (considering the scope of the plaintiff’s
employment duties in determining whether the speech related to a public concern). She
9

Defendants assert that Berger cannot assert both a whistleblower claim under Idaho state law
and a First Amendment claim, because the two are mutually exclusive. Defendants argue that Berger acts
in her public capacity as a whistle blower, and so she cannot also be acting as a private citizen for
purposes of the First Amendment. The Court will address this issue later.

MEMORANDUM DECISION AND ORDER - 12

did not speak out about matters affecting the parks per se, but rather about the misuse of a
government credit card per County policy.
When a government employee exercises her protected right of free expression, the
government cannot use the employment relationship as a means to retaliate for that
expression. Coszalter, 320 F.3d at 974. The employee must show that retaliation was a
substantial or motivating factor behind a defendant’s adverse employment actions.
Coszalter, 320 F.3d at 977. There are three ways a plaintiff can show that retaliation was
a substantial or motivating factor behind an employer’s adverse employment action.
Keyser v. Sacramento City Unified School District, 265 F.3d 741 (9th Cir.2001). First, a
plaintiff can introduce evidence regarding the “‘proximity in time between the protected
action and the allegedly retaliatory employment decision’” from which a “‘jury logically
could infer [that the plaintiff] was terminated in retaliation for his speech.’” Id. at 751
(quoting Schwartzman v. Valenzuela, 846 F.2d 1209, 1212 (9th Cir.1988)). Second, a
plaintiff can introduce evidence that “his employer expressed opposition to his speech,
either to him or to others.” Id. Third, the plaintiff can introduce evidence that “his
employer’s proffered explanations for the adverse employment action were false and pretextual.” Id. at 752.
There is no dispute that both McFadden and the County Commissioners knew of
Berger’s complaint about McFadden’s use of the credit card. She first voiced her
complaint to the Commissioners on May 9, 2011, shortly after the March 2011 credit card
statement arrived. Although Berger alleges that the Commissioners verbally reprimanded
her for reporting the credit card incident, there is no evidence that any adverse
MEMORANDUM DECISION AND ORDER - 13

employment action followed on the heels of this reprimand. Berger’s suspension did not
occur until December of 2011, and she was reinstated to her position on April 25, 2012.
Moreover, there is no evidence that McFadden, who was ultimately responsible for the
May 7, 2012 termination decision, ever spoke publically against Berger’s speech, either
in May of 2011, or when she reported the credit card use to law enforcement on April 30,
2012.
Thus, the only adverse action tied to Berger’s speech is the May 7, 2012
termination. Berger argues that her termination on May 7, 2012, was a result of her report
to law enforcement on April 30, 2012, and the ensuing seven day investigation. The
materials submitted to the Court contain circumstantial evidence that creates an issue of
disputed fact regarding Berger’s termination. A jury could infer that Berger’s report to
law enforcement on April 30, 2012, was a motivating factor behind the May 7, 2012,
adverse employment action because of its close proximity in time. The jury could also
reasonably interpret McFadden’s confrontation with Berger over cleaning the restrooms
one day early as trivial, and they could believe Berger’s opinion that reporting to Pozenel
constituted a demotion. Further, McFadden knew of the report to law enforcement, and
the investigation was reported to the local paper. Given the facts, a jury reasonably could
infer that Berger’s employment was terminated in retaliation for her speech, and that her
insubordination provided a convenient opportunity to do so. Schwartzman, 846 F.2d at
1212.
Generally, a jury must decide the issue of motivation. Allen v. Scribner, 812 F.2d
426, 436 (9th Cir. 1987). It is not for the Court to determine credibility or to comment on
MEMORANDUM DECISION AND ORDER - 14

the weight of the evidence upon summary judgment.10 Because the Court finds there is a
genuine dispute of material fact regarding causation, the Court need not analyze whether
Defendants established justification for the adverse employment action.
3.

Violation of Idaho Code 6-2101
The Idaho Protection of Public Employees Act (“Idaho Whistleblower Act”),

Idaho Code §§ 6-2101—6-2109, provides “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.” Idaho Code § 6-2101. To protect an employee
from adverse action, the 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. Such communication shall be
made at a time and in a manner which gives the employer reasonable opportunity to
correct the waste or violation.” Idaho Code § 6-2104(1)(a).
To establish a cause of action under the Act, the plaintiff must show, “by a
preponderance of the evidence, that the employee has suffered an adverse action because
10

Defendants cite to Knickerbocker v. City of Stockton, 81 F.3d 907 (9th Cir. 1996), for their
argument that mere adverse action following close on the heels of protected activity does not compel an
inference of retaliation where other evidence provides a reasonable basis for inferring that adverse action
was not retaliatory. Defendants contend that Berger’s comments to McFadden, and her insubordination,
formed the basis for the adverse employment decision, not her report to law enforcement, and that the
proximity in time does not compel an alternate conclusion. However, Knickerbocker is distinguishable. In
that case, the court conducted a bench trial, and was therefore permitted to weigh the evidence and assess
credibility. Under such circumstances, the standard of review on appeal was one for clear error. That is
not the case here, where the Court is presented with the issue upon motion for summary judgment.

MEMORANDUM DECISION AND ORDER - 15

the employee . . . engaged or intended to engage in an activity protected under section 62104, Idaho Code.” Idaho Code § 6-2105(4). To survive summary judgment, Berger must
only present evidence from which a rational inference of retaliatory discharge under the
Act could be drawn. Curlee v. Kootenai County 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 nondiscriminatory reasons for discharge. Id. at 463—64. (holding that the McDonnell
Douglas burden shifting analysis does not apply at the summary judgment stage under
the Act).
A prima facie case for retaliatory discharge under the Act requires Berger to show:
(1) she was an “employee” that 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. There is no
dispute that Berger was employed by the County, and she was terminated from her
employment. See Idaho Code § 6-2103; Curlee, 224 P.3d at 464.
Defendants argue Berger cannot simultaneously bring a claim under the Act and
under the First Amendment, because the two claims are mutually exclusive. Defendants
argue that Berger acts in her public capacity as a whistleblower, so she cannot also be
acting as a private citizen for purposes of the First Amendment. The Court finds no
authority to support Defendants’ argument. Nothing in the Act suggests that Berger must
meet anything other than the definition of an “employee” working for a public
“employer.” An “employee” is someone who “performs a service for wages or other
MEMORANDUM DECISION AND ORDER - 16

remuneration.” Idaho Code § 6-2103(3). An “employer” means the “state of Idaho, or any
political subdivision or governmental entity . . . . [or] a county, city, town, regional
governing body, [or] council.…” Idaho Code § 6-2103(4)(a), (c).
There is no requirement under Curlee or Idaho Code § 6-2104 that an employee be
acting in a “public capacity,” only that she meets the definition of employee and her
employer meets the definition of “employer.” In other words, a claim under the Act is
available only to public employees, not private citizens. But it does not follow that a
public employee cannot also bring a First Amendment claim. If Defendants’ argument
were accepted, a public employee could never bring a First Amendment claim, because
she always would be acting in a “public capacity” by virtue of her employment.
As for causation, for the same reasons the Court cannot decide in favor of
Defendants on Berger’s First Amendment Claim, it cannot so decide on this claim.
“Although there must be something more than pure speculation or conjecture,
circumstantial evidence may provide an inference of causation. Proximity in time
between the protected activity and the adverse employment action is ‘particularly
significant.’” Curlee, 224 P.3d at 464 (quoting Heng v. Rotech Med. Corp., 688 N.W.2d
389, 399 (N.D. 2004). The close relation in time between the very public investigation
conducted by law enforcement and the termination of Berger’s employment would
support a reasonable inference that Berger was discharged for her speech, as previously
explained above.
Defendants argue that the only reasonable inference a juror could make is that
Berger’s termination was the result of her insubordination and her refusal to comply with
MEMORANDUM DECISION AND ORDER - 17

McFadden’s order to report to Pozenel. But, at this stage, it is not for the Court to weigh
the evidence. Although a jury ultimately may decide the County did not discharge Berger
in retaliation for her report to law enforcement, “that determination belongs to the jury at
trial and not the judge at the summary judgment stage.” Curlee, 224 P.3d at 464. Berger
has presented material facts sufficient to establish a genuine dispute.
Finally, Defendants contend that Berger’s speech was not protected under the Act,
because she did not communicate her concerns to law enforcement in “good faith.”
Rather, Defendants argue Berger’s report to law enforcement was driven by animosity
toward McFadden. For support, Defendants point out that Berger reported the issue to the
Commissioners, and then waited over one year to report the incident to law enforcement.
“Good faith” under the Act is defined as having 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.” Idaho Code § 6-2104(1)(b).
Here, the Court finds there is a genuine dispute as to the material facts regarding
determination of good faith. The County’s ethics manual and personnel policy indicates
that use of the County’s credit card for employee personal purchases constitutes misuse.
Berger stated that she reasonably believed the County was covering up McFadden’s
misconduct, and that McFadden should not have been permitted to use the credit card to
purchase his wife’s airline ticket, even if he paid the bank card issuer directly. Berger
explained she waited to report the incident because she was afraid of losing her job, and
she was not yet reinstated to her position.

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Although the jury could infer otherwise considering the timing of events and the
credibility of the witnesses, such is not for the Court to decide on summary judgment.
Curlee, 224 P.3d at 467 (“Whether an employee has made a report in good faith is a
question of fact .…”)
CONCLUSION
Although Berger’s evidence is not particularly strong, “credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge.” Allen, 812 F.2d at 437 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). Accordingly, the Court will deny Defendants’
motion for summary judgment with respect to Berger’s first and third causes of action.
But there is no dispute that Berger’s notebook containing her journal constitutes personal
property undeserving of protection under the due process clause of the Fourteenth
Amendment; summary judgment will be granted with respect to Berger’s second cause of
action, and Defendant Tony Pozenel will be dismissed as a party defendant to this action.

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ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Defendants’ Motion for
Summary Judgment (Dkt. 23) is GRANTED IN PART AND DENIED IN PART
consistent with the Court’s opinion.
IT IS FURTHER ORDERED that:
The Clerk is directed to terminate Defendant Tony Pozenel as a party defendant to
this action.
A five (5) day jury trial will be set in Pocatello, Idaho by separate order.

January 21, 2014

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