Berrett v. Clark County School District No. 161

Filing 38

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Defendant's Motion for Summary Judgment 20 is GRANTED. Defendant's Motion in Limine 34 is DENIED AS BEING MOOT. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RONALD RYAN BERRETT and
LANIE BERRETT, husband and wife,
Plaintiffs,

Case No. 4:12-CV-00626-EJL-CWD
MEMORANDUM DECISION AND
ORDER

v.
CLARK COUNTY SCHOOL
DISTRICT NO. 161,
Defendant.

Pending before the Court in the above-entitled matter is Defendant Clark County
School District No. 161's (District) Motion for Summary Judgment (Dkt. 20). Having
fully reviewed the record, the Court finds that the facts and legal arguments are
adequately presented in the briefs and record. Accordingly, in the interest of avoiding
further delay, and because the Court conclusively finds that the decisional process would
not be significantly aided by oral argument, this matter shall be decided on the record
before this Court without oral argument.
FACTUAL BACKGROUND
Plaintiffs Ronald Berrett and Lanie Berrett (Berretts) are husband and wife and
were both employed by the District. Mr. Berrett was employed as a part-time
maintenance supervisor. It is undisputed Mr. Berrett is disabled and that the District was

MEMORANDUM DECISION AND ORDER - 1

aware of his disability. Mr. Berrett did not want a full-time position with the District
because if he earned too much (an amount over $1,000 per month) he would lose his
disability benefits that he received monthly. The District accepted Mr. Berrett’s request
for limited part-time hours and was aware that due to his disability the maintenance duties
may take a longer amount of time to be completed.
Mr. Berrett asked for additional help in completing all of his maintenance duties.
The District offered Mr. Berrett full-time employment, but he declined the offer. The
District did agree to hire Ms. Berrett to mow the lawns in order to give Mr. Berrett more
time to complete his duties. The District did not hire any other employees to assist Mr.
Berrett. Mr. Berrett was never negatively reviewed for the time it took him to complete
projects and the District never complained about Mr. Berrett’s maintenance work.
In January 2012, there was an issue with a propane leak in the old gymnasium. A
number of teachers and others had complained of a propane smell. Mr. Berrett advised
Superintendent Kerns of the problem. It took several months to determine the actual
problem and then when a repair plan was developed, it had to be modified and the total
cost of repairs was approximately $36,000. Mr. Kerns informed the School Board of the
ongoing tests and results. The work was done during the summer of 2012 by an outside
contractor.
In April 2012, there were public bids requested for 30,000 gallons of propane for
the District. During the bid process, it was determined that the District did not own the
existing tanks or vaporized, the so those pieces of equipment had to be replaced. At the
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May 17, 2012 School District Meeting, Mr. Berrett reported to the Board there were still
propane issues as well as a problem with the systems’s vaporizer. An outside contractor
also addressed the School Board about the vaporizer issue. The vaporizer problem was
resolved when a new tank and vaporizer were installed by an outside contractor in the
summer of 2012.
Also at the May 17, 2012, meeting, Superintendent Kerns met with the School
Board in executive session and tendered his resignation. The School Board accepted the
resignation but continued Mr. Kerns under contract as interim superintendent until a new
superintendent was hired or Mr. Kerns left for another position. Mr. Kerns worked as the
interim superintendent through July 2012.
In late May or early June 2012, it is undisputed that Mr. Berrett posted a
derogatory Facebook post about Mr. Kerns. Several students and parents saw the post and
some students commented about the post. Mr. Kerns considered the post inappropriate
and in violation of District Policy. Mr. Kerns confronted Mr. Berrett and informed him
the post was inappropriate and must be removed. Mr. Berrett responded by calling Mr.
Kern as “f**king asshole.” The Facebook post was subsequently deleted.
At the next meeting with the School Board, Mr. Kerns discussed the Facebook
post and Mr. Berrett’s statement to Mr. Kerns. The School Board determined that
termination was appropriate and on June 27, 2012 a letter of termination was sent to Mr.
Berrett. The letter indicated Mr. Berrett was being terminated due to “insubordination
and verbally abusive to the District administrator and having ridiculed personnel through
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social media on the internet.” Dkt. 20-7, Ex. B. The letter also indicated that because he
was no longer a District employee, he would have to vacate the district owned housing.
Id.
Mr. Berrett maintains his disclosure of the propane problems led to his dismissal.
The District claims the propane repairs had nothing to do with the decision to terminate
Mr. Berrett. School Board Chair, Erin Haight-Mortensen, filed an affidavit indicating the
propane issues had no bearing on the decision to terminate Mr. Berrett and that she was
informed of the propane issues beginning in January 2012. Ms. Haight-Mortensen also
indicated in her affidavit that Mr. Berrett was asked if he would like to work full-time and
he declined to accept full-time employment as he would lose his disability benefits. The
District agreed to allow Mr. Berrett to work part-time and Ms. Haight-Mortensen does not
remember any request for accommodation by Mr. Berrett other than his request to only
work part-time.
Mr. Berrett requested a meeting with the School Board and a meeting was held on
or about July 3, 2012. Mr. Berrett testified in his deposition that he wanted to confirm the
School Board agreed with Mr. Kerns’ termination decision. The School Board members
indicated to Mr. Berrett they agreed with the termination decision.
Ms. Berrett started work in the school kitchen in 2007. There is no allegation that
Ms. Berrett suffers from any disability. In 2009, she was promoted to Lunchroom
Supervisor. Her responsibilities included ensuring the kitchen was run properly,
completing state required paperwork, and preparing the annual budget for the kitchen.
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The District maintains that for three consecutive years Ms. Berrett exceeded her budget.
The District indicates it had allowed for $15,000 in overages but that the actual overages
exceeded the budgeted amounts and the District had to transfer money from other
departments to pay the overages in the lunchroom. Ms. Berrett was informed each year
by the District Business Manager, Ms. Woods, that exceeding her budget was
unacceptable.
In June 2012, it was determined that Ms. Berrett had exceeded her budget for the
2011-12 school year by about $63,000. On June 27, 2012, Ms. Berrett was provided a
letter notifying her of her termination. The letter stated “You have consistently overspent
the Food Service budget each year, with the amount increasing each time. Your also are
not performing satisfactorily in your supervisory duties and you have not followed
direction from your own supervisor when called upon to make sure District policies and
procedures are followed.” Dkt. 20-7, Ex. C. The letter also indicated that because she
was no longer a District employee, she would have to vacate the district owned housing.
Id.
Originally, the District wanted the Berretts to vacate the District housing by July 9,
2012, but that date was extended to give the Berretts thirty (30) days to vacate the
District-owned housing after the Berretts raised the issue that under the Fair Housing Act
they were entitled to more time.
On or about September 25, 2012, Mr. Berrett filed a Notice of Charge of
Discrimination with the EEOC. The EEOC subsequently issued a “Right to Sue” letter.
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Ms. Berrett did not file any claim of discrimination with the EEOC or the Idaho Human
Rights Commission. The Berretts filed the Complaint on December 20, 2012 (Dkt. 1).
The Complaint alleges three causes of action: (1) violation of the Americans with
Disabilities Act (ADA), (2) violation of the Fair Housing Act, and (3) violation of the
Idaho Whistleblower Act, Idaho Code § 6-2101. The District denies all three claims and
moves for summary judgment.

STANDARD OF REVIEW
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
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). Material facts are those that may affect the outcome of the case. See
id. at 248.
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The moving party is entitled to summary judgment if that party shows that each
issue of material fact is not or cannot be disputed. To show the material facts are not in
dispute, a party may cite to particular parts of materials in the record, or show that the
materials cited do not establish the presence of a genuine dispute, or that the adverse party
is unable to produce admissible evidence to support the fact. Fed. R. Civ. P.
56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court must consider “the
cited materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(c)(3).
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or opposition to a motion “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). In determining the
admissibility of evidence for a summary judgment motion, it is the contents of the
evidence rather than the form that the court must consider. Fraser v. Goodale, 342, F. 3d
1032, 1036-37 (9th Cir. 2003).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. All inferences which can be drawn from the evidence
must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809
F.2d at 630-31 (internal citation omitted).
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Rule 56(e)(3) authorizes the Court to grant summary judgment for the moving
party “if the motion and supporting materials–including the facts considered
undisputed–show that the movant is entitled to it.” The existence of a scintilla of evidence
in support of the non-moving party’s position is insufficient. Rather, “there must be
evidence on which the jury could reasonably find for the [non-moving party].” Anderson
v. Liberty Lobby, 477 U.S. at 252.

ANALYSIS
Plaintiffs have raised three causes of action related to their alleged wrongful
termination by the District. The Court will address each cause of action separately, but
will begin with Defendant’s argument that due to the at-will status of the Berretts, they
are unable to claim wrongful termination on any grounds.
1. At-Will Employee Status and Public Policy
Defendant argues summary judgment should be granted in its favor as Mr. and
Mrs. Berrett were at-will employees and could be dismissed at any time for no reason at
all without incurring liability. Mitchell v. Zilog, Inc., 874 P.2d 520, 523 (Idaho 1994).
Plaintiffs agree they were at-will employees, but claim they can bring an action for
wrongful discharge if they can show their termination was in violation of public policy.
Jackson v. Minidoka Irr. Dist., 563 P.2d 54, 57 (Idaho 1977). If Mr. Berrett was
terminated in violation of the ADA or the Idaho Whistleblower Act, Plaintiffs argue they
have met the requirement for discharge in violation of public policy.
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The public policy exception to the at-will doctrine is triggered only where an
employee is engaging in some protected activity, which includes (1) refusing to commit
an unlawful act, (2) performing an important public obligation, or (3) exercising certain
legal rights and privileges. Van v. Portneuf Medical Center, 212 P.3d 982, 991 (Idaho
2009). Whether an employee is engaged in a protected activity is a question of law. Id.
In determining whether an activity is protected, the court analyzes (1) whether there is a
public policy at stake sufficient to create an exception to at-will employment, and (2)
“whether the employee acted in a manner sufficiently in furtherance of that policy.”
Thomas v. Med. Center Physicians, P.A., 61 P.3d 557, 565 (Idaho 2002). The public
policy must generally be based on case law or statutory language. Edmondson v. Shearer
Lumber Prods. , 75 P.3d 733, 738 (Idaho 2003). Finally, it is up to the employee to show
that his termination was in fact motivated by his participation in the protected activity. Id.
The Court will now determine if a public policy exception applies to the claims.
2. ADA Claim
The ADA creates a duty on employers to provide a reasonable accommodation for
a known disability of a qualified individual with a disability. 42 U.S.C. § 12112(b)(5)(A).
A prerequisite to liability for an employer’s failure to accommodate under the ADA is
that the plaintiff must have requested an accommodation from the employer. Graves v.
Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006).
To establish a prima facie ADA claim, and employee has the burden to show: “(1)
she is a disabled person within the meaning of the statute; (2) she is qualified, with or
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without reasonable accommodation, to perform the essential functions of the job she
holds or seeks; and (3) that she suffered an adverse employment action because of her
disability.” Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154, 1156 (9th Cir.
2000). If plaintiff establishes the prima facie case of discrimination, then the burden
shifts to the employer to come forward with a non-discriminatory reason for discharge.
Snead v. Metropolitan Property & Cas. Inc. Co., 237 F.3d 1080, 1093 (9th Cir. 2001).
The burden then shifts back to the employee to show that the employer’s alleged nondiscriminatory reason for termination was a pretext for the alleged discrimination. Id.
It is undisputed that Mr. Berrett is disabled and the District was aware that Mr.
Berrett was disabled since he informed the District he was receiving disability payments
and was not able to work more than a part-time schedule. Superintendent Kerns knew that
Mr. Berrett had problems physically on one side of his body, that he walks with a limp,
had trouble walking and it was hard for him to climb a ladder.. It is also undisputed that
Mr. Berrett was qualified and able to perform the essential functions of his position as a
maintenance supervisor. It is undisputed Mr. Berrett suffered an adverse employment
action when he was terminated, however it is disputed whether he suffered an adverse
employment action because of a disability. See Allen v. Pacific Bell, 348 F.3d 1113, 1114
(9th Cir. 2003) (emphasis added).
Mr. Berrett claims he asked the District to hire more help, but he does not claim he
was unable to do the maintenance work because of his disability, only that the time to
complete the work may have taken him longer due to his disability and arguably there
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was more maintenance work to be completed than could be completed by a part-time
employee. There is no evidence in the record that Superintendent Kerns or the school
board were concerned about or complained about the amount of time Mr. Berrett needed
to complete his work or that maintenance work was not being completed.
Under the ADA, “employers are required to engage in an interactive process with
employees in order to identify and implement appropriate reasonable accommodations.”
Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir. 2000) (en banc), vacated on other
grounds, 535 U.S. 391 (2002). “The interactive process is triggered either by a request for
accommodation by a disabled employee or by the employer’s recognition for such an
accommodation.” Id. at 1112. An employee is not required to use any particular
language when requesting an accommodation but need only “inform the employer of the
need for an adjustment due to a medical condition.” Id. The interactive process required:
(1) direct communication between the employer and the employee to explore in good
faith the possible accommodations; (2) consideration of the employee’s request; and (3)
offering an accommodation that is reasonable and effective. Id. at 1114-15. An employer
is liable for a failure to provide reasonable accommodation only where the employer is
responsible for the breakdown in the interactive process. Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080. 1089 (9th Cir. 2002).
Mr. Berrett argues his asking for additional maintenance help was his request for
accommodation and the District failed to provide a reasonable accommodation. It is
undisputed that Superintendent Kerns gave Mrs. Berrett eight additional hours of work
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each week to help with mowing the school grounds to assist Mr. Berrett. This was also to
avoid Mr. Berrett exceeding his twenty hours of work a week which would impact his
disability payments. No other additional help was hired by the District.
In viewing the evidence in light most favorable to the Berretts, arguably the
evidence is enough to satisfy the Plaintiffs’ burden of establishing a prima facie showing
that the District failed to provide a reasonable accommodation by not hiring more
maintenance personnel and that Mr. Berrett suffered an adverse employment action
because of the disability. The Court will now examine whether the District is able to
rebut this showing by providing a non-discriminatory reason for Mr. Berrett’s
termination.
The Court notes the District maintains that the request for more help was not a
request for accommodation due to Mr. Berrett’s disability, but was a request related to the
amount of maintenance work that needed to be done. There is no evidence in the record
the District required Mr. Berrett to work more than the part-time hours he agreed to. Even
assuming the request for an additional maintenance worker was a request for
accommodation, the Court finds there is no evidence the request for more help was a
“motivating factor” in Mr. Berrett’s termination. Head v. Glacier Northwest Inc., 413
F.3d 1053, 1065 (9th Cir. 2005).
The District has provided testimony that the basis for Mr. Berrett’s termination
was not due to his ability to complete the maintenance work, but was instead due to a
violation of District policy when he posted derogatory comments on the internet and
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treated the Superintendent disrespectfully when confronted about the Facebook posting.
There is no indication in the letter of termination or testimony of the witnesses that the
termination was because of Mr. Berrett’s disability.
The burden now shifts back to Mr. Berrett to present facts to put at issue the
District’s reasons for termination were mere pretext for discrimination. Mr. Berrett does
not deny the Facebook posting or being disrespectful to the Superintendent when
confronted. Mr. Berrett does not deny that his behavior regarding the Facebook posting
could be viewed as a violation of District policy. Mr. Berrett does not deny the
replacement maintenance worker hired after Mr. Berrett also suffered from a disability
and was employed in a part-time capacity. Mr. Berrett does not deny that when he asked
for the meeting with the School Board, the Board members confirmed their agreement
with his termination. Mr. Berrett does not refute School Board Chair Erin HaightMortensen’s affidavit indicating the propane issues had no bearing on the decision to
terminate Mr. Berrett and that she was informed of the propane issues beginning in
January 2012.
Mr. Berrett has not carried his burden in creating a genuine issue of material fact
that his termination was pretext for being terminated based on his disability. The Court
finds the facts are undisputed and do not create a genuine issue of material fact regarding
whether there was a legitimate basis for Mr. Berrett’s termination. The Court finds the
basis for the termination has not been shown to be pretextual and there is no evidence the
termination was due to Mr. Berrett’s disability. Therefore, the claim that Mr. Berrett was
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terminated in violation of public policy related to the ADA must be dismissed.
Additionally, because Mr. Berrett’s ADA claim is dismissed any related claims by Ms.
Berrett cannot proceed and must be dismissed as well.
3. Whistleblower Act Claim
Plaintiffs’ second ground for termination in violation of public policy is The Idaho
Protection of Public Employees Act (“Idaho Whistleblower Act”), I.C. §§
6-2101—6-2109. Mr. Berrett maintains the reason he was terminated was due to his
reporting the propane issue and his insistence on repairing the propane leak and bringing
such issue to the District’s attention. Reporting such misconduct falls can fall under the
public policy exception if the conduct reported by Mr. Berrett is unlawful and it involves
the health and welfare of the public. Crea v. FMC Corp.,16 P.3d 272, 275 (Idaho 2000).
In order to withstand a motion for summary judgment, Plaintiffs must establish
that Mr. Berrett “engaged or intended to engage in a protected activity.” Id. at 464
(quoting Idaho Code §§6-2104 & 6-2105(4)). Protected activities under the Idaho’s
Whistleblower Act are described by the statute. The Idaho Whistleblower Act 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. In order to protect an employee from such action, Idaho Code §
6-2104(1)(a) provides: “An employer may not take 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
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manpower, or a violation or suspected violation of a law, rule or regulation adopted under
the law of this state, a political subdivision 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.” Id. In order to have a
valid cause of action under the Idaho Whistleblower Act, “the employee shall establish,
by a preponderance of the evidence, that the employee has suffered an adverse action
because the employee, or person acting on his behalf engaged or intended to engage in an
activity protected under section 6-2104, Idaho Code.” Idaho Code § 6-2105(4). Thus, in
order to have engaged in a protected activity, Berrett must establish that he communicated
in good faith a “violation or suspected violation of a law, rule or regulation.”
In the present case, in order for the Berretts to withstand a motion for summary
judgment, they must establish a prima facie case of retaliatory conduct for an action
protected by the Idaho Whistleblower Act. Under the Idaho Whistleblower Act, a prima
facie case for retaliatory discharge requires a plaintiff to show that: (1) the purported
communications regarding the propane issues constituted a protected activity; (2) the
District’s decision to terminate the Berretts employment constituted an adverse action;
and (3) there was a causal connection between the protected activity and the adverse
action. See Curlee v. Kootenai County Fire & Rescue, 224 P.3d 458, 464 (Idaho 2008)
(quoting I.C. §§ 6-2104 and 6-2105(4)).
Mr. Berrett claims his reporting of a problem with the propane systems was a
communication protected under the Whistleblower Act and/or the public policy exception
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for wrongful termination. See Ray v. Nampa Sch. Dist. No. 131, 814 P.2d 17 (Idaho
1991) (protecting reports of electrical building code violations). The undisputed facts are
that propane smells were detected in or near the old gymnasium by Mr. Berrett as well as
other teachers and administrators. Superintendent Kerns was made aware of the
problem and third parties were hired to investigate the potential leaks. Superintendent
Kerns admitted in his deposition that the Sermon Electric quote in March 2012 included
language that equipment without proper gas pressure is unsafe and the tank needed to be
brought up to code. This evaluation of the propane issues took several months to
complete and identify proper solutions. The ultimate solutions included the replacement
of more equipment/pipes than originally estimated. Ms. Haight-Mortensen stated in her
affidavit that in her capacity as a School Board member she was first made aware of the
propane issue in January 2012. The propane issues were resolved in the summer of 2012.
There is no evidence in the record that Superintendent Kerns instructed Mr. Berrett
to try to hide the propane issue or that Mr. Berrett was disciplined for his reports to the
school board regarding the propane issue. The Board was advised of the specific
equipment that was not up to current codes and was provided estimates from third party
vendors to repair or replace the equipment.
Mr. Berrett speculates that his termination was due to his disclosure of the propane
issues and equipment being identified by others as not meeting codes. Presumably this
belief is because the propane situation was being addressed in the months prior to his
termination. However, other than Mr. Berrett’s belief, there is no other testimony that
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indicates Mr. Berrett was terminated due to his disclosure of the propane issues. There is
no evidence Superintendent Kerns or others told Mr. Berrett he could not raise the issues
about the propane smell or equipment. There is no evidence Mr. Berrett’s propane
concerns were not properly addressed by the District. Nor is there any evidence in the
record to even suggest Mr. Berrett’s termination was due to his failure to maintain
propane equipment or pipes. The termination letter makes no reference to maintenance or
propane issues. Mr. Berrett had the opportunity to meet with the School Board, but he
did not ask them if his termination was due reporting propane issues. Instead, he asked if
the School Board agreed with the decision to terminate him, which they indicated they
did.
Even if the Court assumes for purposes of this motion that Mr. Berrett’s
communications about the propane issues were “protected” communications under the
Whistleblower Act or under the public policy exception, he has not carried his burden to
establish a causal connection between the protected activity and his termination. Nor has
he presented any evidence the District’s explanation his termination was based on the
Facebook posting was pretext for a retaliatory firing based on the propane issues.
Therefore, the claim must be dismissed as a matter of law.
Moreover, the Court does not find Ms. Berrett’s situation in the school lunchroom
qualifies as “protected activities” that would be covered under the public policy exception
to the at-will doctrine or under the Whistleblower Act. The record is undisputed that Ms.
Berrett regularly exceeded her budget for food services. This is the primary reason given
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by the District for her termination. Ms. Berrett has not provided facts to support her
termination violated public policy or was due to any concerns she raised under the
Whistleblower Act. Therefore, to the extent the Complaint includes a claim by Ms.
Berrett under Idaho’s Whistleblower Act, it must be dismissed.
4. Fair Housing Act
The Fair Housing Act of 1964 (42 U.S. C. §§ 3601 et seq.) prohibits housing
discrimination on the basis of race, color, religion, sex, disability, familial status, and
national origin. Plaintiffs claim their rights under the Fair Housing Act where violated
when they were forced to leave the District-owned housing. Ms. Berrett acknowledged in
her deposition their ability to rent the District-owned housing was based on the fact that
they were District employees. The District maintains it was a longstanding policy that the
District-owned housing required one be a District employee. However, the lease did not
have this requirement expressly stated in the lease. Nevertheless, when both Mr. and Mrs.
Berrett were terminated, the District maintains the Berretts’ right to remain as tenants in
the housing not longer existed. The Berretts do not contest employment with the District
was understood to be a prerequisite to being able to rent a District-owned housing.
Therefore, this cannot be a basis for a violation of the Fair Housing Act as the policy of
employment applied to all persons who rented District-owned housing.
While initially, the District told the Berretts they needed to move out quickly, this
requirement was revised to give them sufficient time under the Fair Housing Act to vacate
the premises so that cannot be a basis for relief in the current litigation. Instead, Plaintiffs
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argue that their termination of the lease was in violation of the Fair Housing Act as Mr.
Berrett was disabled.
The record establishes the monthly rent amount due under the lease was never
changed and was set at $350 per month. It is undisputed that the District allowed extra
hours of work by Mr. Berrett to be credited against the rent due until it was discovered
this could affect his disability status if the reductions for the rent were combined with is
salary and the total exceeded the amount he could earn and still keep his disability status.
However, there is no showing Mr. Berrett was required to work more than the part-time
hours assigned. It was Mr. Berrett’s request not to exceed a certain number of hours that
prevented Mr. Berrett from working off some of the rent owed.
There is no evidence Mr. Berrett requested modifications to the housing due to his
disability. Rather, Plaintiffs claim because Mr. Berrett was terminated in violation of the
ADA, his right to lease the housing was in effect terminated due to his disability. The
Court has found Mr. Berrett was not terminated in violation of the ADA, so there is no
evidence the termination of the lease was due to Mr. Berrett’s known disability and the
claim under the Fair Housing Act cannot survive.
CONCLUSION
As discussed above, the Court finds Plaintiffs have failed to establish that genuine
issues of material fact exist that would prevent summary judgment from being granted in
Defendant’s favor on each cause of action. The Berretts were at-will employees and have
not established genuine issues of fact exist regarding the application of a public policy
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exception for their wrongful termination claims. As to the ADA claim, Plaintiffs failed to
establish the basis for termination of Mr. Berrett was pretextual. As to the
Whistleblower Act claim Mr. Berrett failed to establish a causal connection from the
alleged protected activity and the decision to terminate him. Ms. Berrett’s alleged basis
for termination does not rise to the level of protected communications under the
Whistleblower Act or the public policy exception to the at-will doctrine. Finally, as to the
Fair Housing Act claim, the Plaintiffs claim the termination of their right to housing was
based on Mr. Berrett’s termination based on his disability, but the Court finds Mr. Berrett
was not terminated due to his disability, so there could be no related violation of the Fair
Housing Act. For these reasons, the Court finds as a matter of law, Plaintiffs’ claims
must be dismissed.

ORDER
IT IS ORDERED:
1. Defendant’s Motion for Summary Judgment (Dkt. 20) is GRANTED.
2. Defendant’s Motion in Limine (Dkt. 34) is DENIED AS BEING MOOT.
DATED: September 30, 2014

Honorable Edward J. Lodge
U. S. District Judge

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