Harris v. Treasure Canyon Calcium Co.

Filing 34

MEMORANDUM DECISION AND ORDER finding as moot 19 Motion to Amend/Correct Complaint; granting 20 Defendant's Motion for Summary Judgment, or, in the Alternative, for Partial Summary Judgment. 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LARAE HARRIS,
Case No. 4:13-cv-00472-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
TREASURE CANYON CALCUIM
COMPANY, an Idaho corporation,
Defendant.

INTRODUCTION
The Court has before it Defendant Treasure Canyon Calcium Company’s Motion
for Summary Judgment, or in the Alternative, for Partial Summary Judgment (Dkt. 20),
as well as Plaintiff LaRae Harris’s Motion to Amend/Correct Complaint (Dkt. 19). The
Court heard oral argument on both motions on June 22, 2015, and thereafter requested
supplemental briefing, which was submitted on June 24, 2015. Having reviewed all of the
evidence, the Court now issues the following decision.
BACKGROUND
Treasure Canyon Calcium (“TCC”) is a family-owned company with
approximately 25 employees. TCC mines calcium carbonate from its quarry near Preston,
Idaho, which it then prepares in its mill and sells for use in livestock feed and industrial
applications. Def.’s Opening Br., at 8, Dkt. 20-1. TCC hired Plaintiff LaRae Harris on

MEMORANDUM DECISION AND ORDER - 1

June 25, 2008 as a seasonal truck driver. Her job duties consisted of hauling ore from the
quarry to the mill. Def.’s Opening Br., at 8, Dkt. 20-1. At the time she was hired, Harris
knew that, like other drivers, she would be laid off at the end of the mining season in the
fall, but could be rehired in the spring if her services were needed. Id. As a driver, Harris
reported primarily to Reuel Skinner, the Mine Manager, and Derek Steadman, the
Assisting Manager. Id.
When the mining season ended in October of 2008, TCC began to lay off the
seasonal workers, as it did each year. Id. at 9. TCC President N. Ross Smith knew Harris
had had a “difficult year”—her father had passed away, her marriage had ended, and she
had suffered an abscess rupture in her abdomen and was unable to work for five weeks.
Id. Smith asked Steadman if there were any office-related tasks that Harris could do over
the winter months so that she could remain employed at TCC. Id. Steadman had been
doing all of the office-related work up until that point, but he responded that he could
find some work for Harris. From the Fall of 2008 through the Spring of 2009, Harris
worked in the mill office doing data entry of driver miles and fuel use, entering invoices
in accounts receivable, entering invoices in accounts payable and cutting checks for
vendors. She also purged older files that were no longer needed and answered the
telephone. For her work in the office, Harris was compensated at the same $15.50 per
hour rate that she earned as a truck driver. As a full-time employee rather than a seasonal
truck driver, she worked at least 30 hours a week and qualified for TCC’s health and
dental insurance benefits after six months. Id.

MEMORANDUM DECISION AND ORDER - 2

Harris expected that she would return to driving truck in the spring of 2009.
Harris Dep., 101:20–102:4, Dkt. 20-4. However, according to Harris, during the fall of
2008 a fellow driver named Russ Sorenson caused her to run off the road, and then
referred to her as “that damn woman driver.” Id. at 102:10–104:14. Harris reported
Sorenson’s comments to Steadman sometime in the fall of 2008. Id. at 108:17–22. At that
time, Sorenson was not working at TCC because the mining season had ended. Steadman
Decl., ¶13–14.
In the spring of 2009, Smith asked Harris if she was excited to go back to driving
truck. Harris told him that she would rather not drive truck if Sorenson returned to TCC.
Harris Dep., 108:23–109:9, Dkt. 20-4; Smith Decl., ¶4, Dkt. 20-10. In order to avoid any
future conflicts between Harris and Sorenson, TCC arranged to keep Harris primarily in
the office, and taught her to test samples in TCC’s quality control lab. Harris Dep.,
111:6–112:11. Harris did not make any subsequent complaints to TCC about Sorenson.
Id. at 119:17–22; Smith Decl., ¶4, Dkt. 20-10; Steadman Decl., ¶14, Dkt. 20-13. In 2009,
Harris worked exclusively in the office and the lab—none of her 2028 hours were spent
driving truck. In 2010, Harris worked a total of 1,829.25 hours. Of those, approximately
104 hours were spent driving truck and the remaining hours were spent in the office or
lab. Def.’s Statement of Facts, ¶ 5, Dkt. 20-2.
In the summer and fall of 2010, TCC discovered through testing potential
expansion areas in the mine that its available material was not suitable for TCC’s use
because it was not sufficiently pure. Smith Decl., at ¶ 5, Dkt. 20-10. According to Smith,

MEMORANDUM DECISION AND ORDER - 3

this development “jeopardized [TCC’s] ability to serve [its] customers, and threatened to
force the Company to close.” Id. Because TCC no longer had access to sufficiently pure
stone, its inventory dropped sharply and significantly. Def.’s Statement of Facts, ¶ 10,
Dkt. 10-2. For example, in October and September of 2009, TCC’s inventory consisted of
30,000 and 50,000 tons respectively. Id. In contrast, in October and September of 2010,
TCC’s inventory consisted of only 13,000 and 7,600 tons respectively. Id. In December
of 2010, TCC’s inventory was negative for the first time in recent history. Id.
Smith and Steadman elected to take a number of different steps in order to keep
TCC in business. First, TCC agreed to buy stone from Lhoist North America, at a
premium price, so that it could meet its customer’s demands. Id. Second, TCC resolved to
conduct an exploration program in an effort to find usable stone in its own quarries. Id.
Third, TCC reduced its workforce so it would have more liquidity to purchase the Lhoist
stone. Fourth, TCC raised its prices. Fifth and finally, TCC made modifications to the
mill in order to improve efficiency. Id. at ¶ 6.
Purchasing external stone was costly. TCC ultimately payed $1.3 million to Lhoist
North America for stone: $537,737 in 2010, and $816,885 in 2011. Def.’s Statement of
Facts, ¶ 11, Dkt. 10-2.

MEMORANDUM DECISION AND ORDER - 4

In reducing its workforce, TCC eventually eliminated four1 positions out of
approximately twenty-five. Id. at ¶ 7. First, Reuel Skinner, the Mine Manager, retired on
December 31, 2010 and TCC chose not to replace him. In January of 2011, TCC decided
to eliminate Harris’s position, as further discussed below, as well as Jeffrey Brandt’s, an
assistant truck mechanic, because “their duties could be absorbed by existing
employees.” Id. Finally, a truck-driving position was eliminated. Smith Decl., ¶10, Dkt.
20-10. Initially, TCC had a hard time determining which of the truck drivers should be let
go. TCC became concerned that some of the drivers were being purposefully inefficient
because of the lack of work, so it decided to terminate the driver who was recording
inaccurate hours. On January 31, 2011, Smith sent a letter to each driver asking each of
them to sign a statement saying that he or she would be honest in recording his or her
hours. No further inaccuracies were detected, and Steadman did not make a
recommendation for the layoff until April of 2011. In April, truck driver David Hobbs
committed a safety violation, and thereafter Steadman recommended that Hobbs be let
go. Smith approved that decision. Id.

1

Originally, TCC included a fifth employee, Merlin McKay, in its list of employees who were
affected by its reduction in force. Smith Decl., at ¶ 11, Dkt. 20-10. McKay, a mill operator, retired in
November of 2010 and was not immediately replaced. However, he then returned to work only one month
later, in December of 2010, and continued to work at TCC until November of 2011. McKay’s position
was not filled after November of 2011. Harris argues in her supplemental brief that McKay cannot
reasonably be included in TCC’s reduction in force, and TCC does not appear to challenge that, other
than to say that McKay’s position was not filled during 2011 or 2012.

MEMORANDUM DECISION AND ORDER - 5

Six months before her position was eliminated, in July of 2010, Harris was
involved in a work-related accident while driving a TCC truck. She suffered a broken
humerus, a cut on her hand that required sixteen stitches, a broken rib, bruising to her
face and legs, a puncture wound to her leg, and, most significantly, a torn rotator cuff.
Pl.’s Statement of Facts, at 2, Dkt. 22-1. The day after her accident, Steadman filed a
worker’s compensation claim with the Idaho State Insurance Fund on Harris’s behalf and
without her knowledge. Def.’s Statement of Facts, at 6, Dkt. 20-2. Harris was released to
return to work on August 2, 2010, with certain restrictions. Id. at ¶ 7. She needed to
attend physical therapy sessions three times per week, and she could not lift more than
ten pounds. Id. TCC adjusted Harris’s hours and duties so that she could continue to work
within those restrictions. Harris remained on light duty work at TCC until December 20,
2010, the date she underwent surgery on her shoulder. Pl.’s Statement of Facts, at 2, Dkt.
22-1. Harris was cleared to return to “one-arm office work” on January 25, 2011. Id. It is
undisputed that as of January 25, 2011, Harris was capable of returning to TCC to do the
office and lab work that she had previously been doing, but she was not capable of
driving truck as she had done in the past. Id.
On January 26, 2011, Steadman called Harris. Steadman asked Harris “how she
was getting along, how her recovery was going, . . . about [her] ability to drive truck
[and] about her ability to return to work at all.” Steadman Depo. at 76:14–76:17, Dkt. 223. Harris told Steadman that she had been released the day before to return to light office
work, but that should would not be able to drive truck for four to six months. Harris

MEMORANDUM DECISION AND ORDER - 6

Decl. at ¶ 13, Dkt. 22-8. The following day, Smith called Harris to inform her that her
employment was terminated, effective immediately. Id. at ¶ 14. Harris received a letter
from Smith on January 28, 2011. Id. The termination letter indicated that Harris’s
position was being eliminated because of the economic difficulties that TCC was facing.
Smith Decl., ¶8, Dkt. 20-10.
In late 2011 and 2012, TCC began to find usable product as a result of the work of
Dwayne Mickelson, a geologist TCC hired in August of 2011. Smith sent a letter to
Harris dated June 24, 2012, offering a return to her former position at a slightly higher
rate of pay. Smith Decl. at ¶ 13, Dkt. 20-10. Harris refused the offer and instead filed suit
against TCC.
LEGAL STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of 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.” Anderson v. Liberty Lobby, Inc., 477

MEMORANDUM DECISION AND ORDER - 7

U.S. 242, 247–48 (1986). There must be a genuine dispute as to any material fact—a
fact “that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. 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 her favor. Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine dispute of material fact
exists. Celotex, 477 U.S. at 324.
However, the Court is “not required to comb through the record to find some
reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch.

MEMORANDUM DECISION AND ORDER - 8

Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quotation omitted). Instead, the “party
opposing summary judgment must direct [the Court’s] attention to specific triable facts.”
Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
Finally, statements in a brief, unsupported by the record, cannot be used to create a
factual dispute. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir.
1995).
ANALYSIS
In its Motion for Summary Judgment, TCC argues that summary judgment should
be granted in its favor as to each of Harris’s claims: (1) disability discrimination under
the Americans with Disabilities Act (“ADA”) and the Idaho Human Rights Act
(“IHRA”); (2) wrongful termination in violation of public policy; (3) breach of the
covenant of good faith and fair dealing; (4) gender discrimination under Title VII and the
IHRA; and (5) retaliation under Title VII and the IHRA. Each claim will be discussed in
turn.2
1.

Discrimination based on disability
TCC argues that Harris has failed to meet her prima facie case as to her

discrimination claim under the ADA and the IHRA. TCC’s argument is two-fold. It
2

Harris asserts her claims under both federal law and the Idaho Human Rights Act. See Idaho
Code § 67-5909. Because the same standards apply under federal and Idaho law, the Court will reference
only federal law in the sections below. See Bowles v. Keating, 100 Idaho 808, 606 P.2d 458, 462 (1979)
(adopting the standards promulgated in federal discrimination cases for purposes of analyzing claims
brought under the Idaho Human Rights Act).

MEMORANDUM DECISION AND ORDER - 9

asserts that Harris has not demonstrated that she suffered from a disability, and that she
has failed to show that her alleged disability played a role in TCC’s decision to terminate
her. Harris responds that her injuries, particularly to her shoulder, constitute a “disability”
because they substantially limited her ability to work. She argues that she was terminated
because of her disability, as evidenced by Steadman’s deposition testimony where he
“admitted . . . that TCC terminated Harris because she could not drive truck or operate a
loader.” Pl.’s Resp. Br. at 9, Dkt. 22. As further discussed below, however, the Court
finds that Harris has not provided sufficient evidence that would allow a jury to conclude
that her disability, assuming she has one, was a motivating factor in TCC’s decision to
terminate her employment.
To establish a prima facie case of discrimination under the ADA, a plaintiff must
show that: (1) she disabled within the meaning of the ADA; (2) she was a qualified
individual who was able to perform the essential functions of her job; and (3) she was
subject to an adverse employment action because of her disability. Allen v. Pac. Bell, 348
F.3d 1113, 1114 (9th Cir. 2003). With respect to this last element, the discriminatory
impetus does not need to be the sole motive for taking an adverse employment action.
Dark v. Curry Cnty., 451 F.3d 1078, 1084–85 (9th Cir. 2006). Rather, the “motivating
factor” standard is the applicable one. Head v. Glacier Nw. Inc., 413 F.3d 1053, 1065
(9th Cir. 2005). In other words, the ADA prohibits adverse employment decisions
motivated—even in part—by animus toward a plaintiff’s disability. Id.

MEMORANDUM DECISION AND ORDER - 10

Even assuming, without deciding, that Harris was “disabled” as defined in the
ADA, she has failed to produce sufficient evidence that would allow a jury to reasonably
conclude her disability was a motivating factor in her termination. In response to TCC’s
contention that any alleged disability was not a motivating factor in her termination,
Harris points to her own affidavit. There, she states that as of January 25, 2011, she was
capable of performing the office and lab work, but that she was not cleared to drive truck.
Resp. Br., at 9, Dkt. 22. But this fact is undisputed and has no bearing on TCC’s
motivation—actual or perceived—for terminating her. In fact, Harris’s affidavit does not
discuss why she believes she was let go. Pl.’s Ex. 8, at Dkt. 22-8. In addition to her own
affidavit, Harris points to a single piece of evidence—an excerpt from Steadman’s
deposition—which she says constitutes an admission that TCC terminated her because
she could not drive truck or operate a loader.
Emphatically, it does not. The relevant portion of Steadman’s deposition reads:
Q.

A.

Q.

[In the telephone conversation that you had with Harris on January
26, 2011], [i]f she had indicated that she could have driven truck,
would her employment at Treasure Canyon be terminated?
...
I can’t answer that. That’s not the scenario that took place, so I think
that would be speculation on my part. Her position as an office lab
assistant, that position was being eliminated. I was looking for
something to try to help – if there was a possibility where she could
stay on – you know, looking at different options to see if there would
be a possibility that she could stay on somewhere else.
So you asked her if she could drive truck. Was there a possibility
that even if she had said, yes, I can drive truck, that her employment
would still have been terminated at Treasure Canyon?
...

MEMORANDUM DECISION AND ORDER - 11

A.

I don’t know.

Q.

But in any case, she would have been able – it would have been a
requirement for her to be able to drive truck to maintain employment
at Treasure Canyon; correct?

A.

No.

Steadman Dep., 79:1–80:13, Dkt. 22-3. How this testimony could be construed as an
admission that TCC terminated Harris because she could not drive truck is anyone’s
guess. The only evidence Harris points to—Harris’s own statement that she was cleared
for office work, and the above-testimony from Steadman—simply does not give rise to a
genuine issue of material fact as to whether Harris’s assumed disability was a motivating
factor in her termination.3

3

In contrast, see Nigro v. Sears, Roebuck & Co., where the Ninth Circuit held that Nigro’s
“declaration and deposition testimony, albeit uncorroborated and self-serving, were sufficient to establish
a genuine issue of material fact on Sears’s discriminatory animus.” 784 F.3d 495, 497–98 (9th Cir. 2015).
Here however, Harris’s declaration and deposition testimony are insufficient to establish a genuine issue
of material fact as to TCC’s allegedly discriminatory animus. Harris does not point to her deposition
testimony as evidence of discriminatory animus, perhaps for good reason. In response to whether she had
any factual basis that an injury was considered in TCC’s decision to terminate her, Harris responded:
“Other than what I told you earlier about if I could drive truck, I could have a job; if I couldn’t, I was
terminated.” Harris Dep., 326:2–4, Dkt. 20-7. But earlier, she merely testified that during the January 26,
2011 telephone conversation with Steadman, he inquired whether she was ready to come back to driving
truck. Harris responded in the negative, and then testified that Steadman then “indicated that he was
handling the office duty just fine himself, and at that point I don’t remember the rest of the
conversation. . . .” Harris Dep., 214:20–215:6, Dkt. 20-7. Despite Harris’s unreasonable inference to the
contrary, Steadman’s inquiry regarding whether she was ready or able to drive truck does not mean that
she was required to drive truck, or lose her job. Again, less than one percent of her hours worked in 2010
were spent driving truck, so her inability to drive truck had no bearing on why her office position was
eliminated.

MEMORANDUM DECISION AND ORDER - 12

In sum, Harris has not produced sufficient evidence to create a genuine issue of
material fact as to the third element necessary to a disability discrimination claim, even
assuming the other two elements were met. Accordingly, summary judgment is granted in
favor of TCC as to her ADA claim, as well as her corresponding disability claim brought
under the IHRA. See Bowles v. Keating, 100 Idaho 808, 812, 606 P.2d 458, 462 (1979).
2.

Wrongful termination in violation of public policy
Harris argues generally that TCC terminated her because she filed a worker’s

compensation claim, which she contends is a violation of public policy. TCC argues that
Harris cannot meet her prima facie case as to this claim because she did not engage in
protected activity. She did not engage in protected activity, TCC argues, because Harris
admittedly did not file her own worker’s compensation claim. Rather, Steadman filed the
worker’s compensation claim without Harris’s knowledge. TCC also argues it had a
legitimate reason to terminate Harris’s employment, and that there is no basis for her
assertion that she was terminated for filing a worker’s compensation claim. Def.’s
Opening Br., at 15, Dkt. 20-1.
In Idaho, “[u]nless an employee is hired pursuant to a contract which specifies the
duration of the employment, or limits the reasons why the employee may be discharged,
the employee is ‘at will.’” Venable v. Internet Auto Rent & Sales, Inc., 156 Idaho 574,
578, 329 P.3d 356, 360 (2014) (citations omitted). Harris does not dispute that her
employment with TCC was at-will; as such, she could have been terminated “at any time
[or] for any reason without creating liability.” Edmondson v. Shearer Lumber Products,

MEMORANDUM DECISION AND ORDER - 13

139 Idaho 172, 176, 75 P.3d 733, 737 (2003). However, even at-will employees may
bring a claim of wrongful discharge. Jackson v. Minidoka Irrigation Dist., 98 Idaho 330,
333, 563 P.2d 54, 57 (1977). Idaho has long recognized “a narrow exception to the at-will
employment presumption where the employer’s motivation for the termination
contravenes public policy.” Bollinger v. Fall River Rural Elec. Co-op., Inc., 152 Idaho
632, 640, 272 P.3d 1263, 1271 (2012).
“A termination contravenes public policy ‘only where an employee is terminated
for 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.’” Venable, 156 Idaho at 579, 329 P.3d at 361 (citations
omitted). This narrow exception exists in order to “balance the competing interests of
society, the employer, and the employee in light of modern business experience.” Crea v.
FMC Corp., 135 Idaho 175, 178, 16 P.3d 272, 275 (2000). To bring a successful claim
under the public policy exception, an employee must show (1) that she was engaged in a
legally protected activity; and (2) that there is a causal relationship between her
engagement in the protected activity and her termination. Bollinger, 152 Idaho at 640,
272 P.3d at 1271.
As an aside, both parties assert that the McDonnell Douglas burden-shifting
framework should apply to Harris’s wrongful termination in violation of public policy
claim. However, Idaho courts have not yet applied that standard to such a claim. Instead,
at the summary judgment stage, Idaho courts carefully review the record to determine

MEMORANDUM DECISION AND ORDER - 14

whether reasonable minds could come to differing conclusions regarding why the adverse
action was taken. See Ray v. Nampa Sch. Dist. No. 131, 120 Idaho 117, 121–22, 814 P.2d
17, 21–22 (1991); Bollinger,152 Idaho at 641–42, 272 P.3d at 1272–73 (2012). On the
other hand, in an unpublished opinion, the Ninth Circuit has determined that it is “both
helpful and proper” to apply the McDonnell Douglas framework in a case of wrongful
termination in violation of public policy brought under California law. Waddy v. Sears,
Roebuck & Co., 97 F.3d 1463, at *2 (9th Cir. 1996). There is also support for the
contention that a wrongful termination in violation of public policy claim “is essentially
one for retaliatory discharge based upon the exercise of a legal right” and therefore, “the
applicable legal standard to be applied is the same as that employed by federal and state
courts analyzing Title VII and other unlawful discrimination claims.” Romey v. HewlettPackard Co., No. CV 98-0274-S-MHW, 1999 WL 34969949 at *6 (D. Idaho Sept. 10,
1999). Because a wrongful termination claim in violation of public policy is a state-based
claim, the Court will follow the lead of the Idaho courts and deploy the same analyses as
in Ray and Bollinger.4

4

However, if the Court were to utilize the McDonnell Douglas framework, the end result would
still be the same. Assuming that Harris satisfied her prima facie case, TCC met its burden of producing a
legitimate reason for her termination. TCC’s proffered reason for terminating Harris’s employment is that
it chose to reduce its force when it failed to find usable product in its mine. Reducing its force was one of
several steps that TCC took when it discovered that it was running out of usable product. Harris would
then have to demonstrate that this reason is mere pretext. Harris can establish pretext “through evidence
showing that [TCC’s] explanation is unworthy of belief or through evidence showing that discrimination
more likely motivated its decision.” Pottenger v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir. 2003). The

(Continued)

MEMORANDUM DECISION AND ORDER - 15

Harris alleges that she engaged in protected activity when she filed her worker’s
compensation claim. The Court agrees that filing a worker’s compensation claim is
protected activity for the purposes of bringing a wrongful termination claim. See Jackson
v. Minidoka Irrigation Dist., 98 Idaho 330, 334, 563 P.2d 54, 58 (1977) (listing cases
illustrating the public-policy exception to the employment-at-will doctrine, including
Frampton v. Cent. Ind. Gas Co., 297 N.E.2d 425 (Ind.1973), in which the plaintiff was
fired for reporting an injury to her arm so she could file for worker’s compensation,
which the Indiana court held to be in clear contravention of public policy); see also
Thomas v. Med. Ctr. Physicians, P.A., 138 Idaho 200, 208, 61 P.3d 557, 565 (2002)
(“This Court has also indicated that the public policy exception would be applicable if an

burden to demonstrate pretext is “not high.” Id. She must show only that a rational trier of fact could,
looking at all of the evidence, find that TCC’s explanation was pretextual.
In support of her argument that TCC’s rationale is mere pretext, Harris points out that despite an
increase in expenses (due to the necessary purchase of the Lhoist stone as well as the costs incurred by
hiring a geologist to find usable product), TCC still made a profit for each year from 2009 through 2011.
However, Harris does not dispute that in December of 2010, TCC’s inventory was negative for the first
time in recent history. Nor does she dispute that the lack of usable product in TCC’s mines imposed an
unexpected cost of $1.3 million to purchase stone externally. That TCC happened to still turn a profit in
the years it had to purchase stone externally has no bearing on whether TCC’s explanation is worthy of
belief. In sum, Harris’s evidence on this score does not refute TCC’s rationale for her termination and no
rational trier of fact could conclude that TCC’s explanation was pretextual.

MEMORANDUM DECISION AND ORDER - 16

employee were discharged, for example for refusing to date her supervisor, for filing a
worker’s compensation claim, or for serving on jury duty.”).5
Next, Harris must demonstrate there is a causal relationship between the filing of
her worker’s compensation claim and her termination. While the question of causation is
generally one for the jury, “it may be decided as a matter of law where there exists no
genuine issue of fact.” Bollinger, 152 Idaho at 640–41, 272 P.3d at 1271–72. Thus, to
withstand summary judgment as to this claim, Harris must produce more than a scintilla
of evidence, such that a rational trier of fact could reasonably find that she was
terminated because of her worker’s compensation claim.
To support her claim that TCC terminated her employment because she filed a
worker’s compensation claim, Harris points to the following evidence:
(1) “Steadman admitted in his deposition testimony that Smith decided that it
would be ‘kinder’ to terminate Harris immediately because she was, at the
time, receiving Worker’s Compensation income[;]”

5

TCC points out that it was Steadman—not Harris herself—who filed the worker’s compensation
claim on Harris’s behalf. TCC goes on to argue that it “cannot be found liable for retaliating against itself
due to Mr. Steadman’s own action on Ms. Harris’[s] behalf.” The Court is unwilling to hold that just
because TCC filed Harris’s worker’s compensation claim for her, that that action somehow takes the
filing of a worker’s compensation claim outside the realm of protected activity. Such a holding could
incentivize employers to file workers’ compensation claims on behalf of its employees in order to insulate
itself from a wrongful termination claim later on.

MEMORANDUM DECISION AND ORDER - 17

(2) All four of the TCC employees that had a lost time claim reported to TCC’s
worker’s compensation insurance carrier were either terminated or quit in 2011
or 2012; and
(3) There was only a six-month gap between the time in which Harris’s worker’s
compensation claim was filed and her termination.
Pl. Response, at 16, Dkt. 22. Even construing the evidence in the light most favorable to
Harris, the Court finds that no rational trier of fact could reasonably find that Harris was
terminated because of her worker’s compensation claim.
First, the allegation that Steadman “admitted” in his deposition that Harris was
terminated because she was receiving worker’s compensation benefits misstates the
actual testimony given. In fact, Steadman states that the decision to terminate Harris had
already been made, prior to any consideration of whether she was receiving worker’s
compensation. His testimony reads:
Q:
Did you consider allowing her to continue on medical leave rather
than terminating her employment?
A:
I considered that, but after I had given the recommendations to
Ross [Smith] on which positions to eliminate, he thought it would be more
kind to do it sooner than later for Ms. Harris. Rather than invite her back
to work and then lay her off, rather lay her off while she still had
[worker’s compensation] income.
Steadman Dep., 88:24–89:6, Dkt. 22-3. This statement does not, as Harris urges, indicate
that there is a causal connection between her termination and receiving worker’s
compensation benefits. To the contrary, this testimony indicates that Steadman had
already recommended that Harris’s position be terminated, and that Smith took into

MEMORANDUM DECISION AND ORDER - 18

account the fact that Harris was receiving worker’s compensation benefits in deciding
when to inform Harris of her termination.
Second, Harris’s statement that “[a]ll four of the TCC employees that had a lost
time claim reported to TCC’s worker’s compensation insurance carrier were either
terminated or quit in 2011 or 2012” needs to be examined in more detail. At the close of
the hearing on June 22, 2015, the Court requested supplemental briefing on the issue of
whether all of the employees who were terminated had filed worker’s compensation
claims. The Court has reviewed the supplemental briefing in detail. TCC argues that any
statistical evidence should be disregarded because the sample size is too small, but that
regardless, Harris’s argument distorts the evidence in the record. For her part, Harris
clarifies that “[b]y the end of 2011 no employee that had taken worker’s compensation
lost time income within the last four years was still employed at TCC.” Pl.’s Supp. Br. at
1, Dkt. 32 (emphasis added). The Court finds Harris’s statement technically accurate, but
nonetheless unpersuasive.
The Court must first consider the admissibility of this statistical evidence with
regard to a wrongful termination claim because “[w]hen considering evidence presented
in support of or opposition to a motion for summary judgment, a court can only consider
material which would be admissible at trial.” Gem State Ins. Co. v. Hutchison, 145 Idaho
10, 14, 175 P.3d 172, 176 (2007). TCC urges the Court to disregard the evidence as
unreliable. In support of its argument, TCC cites to Sengupta v. Morrison-Knudsen Co.,
where the Ninth Circuit determined that “statistical evidence derived from an extremely

MEMORANDUM DECISION AND ORDER - 19

small universe . . . has little predictive value and must be disregarded.” 804 F.2d 1072,
1076 (9th Cir. 1986) (internal quotation marks omitted). Similarly, in Morita v. Southern
California Permanente Medical Group, the Ninth Circuit found that “plaintiff’s use of
only eight persons in his statistical analysis is much too small to have any significant
benefit to his position.” 541 F.2d 217, 220 (9th Cir. 1976). And in Aragon v. Republic
Silver State Disposal Inc., 292 F.3d 654, 663–64 (9th Cir. 2002), the Ninth Circuit held
“the fact that three of the four casuals singled out for lay off that night were white” was
not deserving of “much weight” because of the small sample size. As the Circuit
explained, “[t]he problem with a small number, of course, is that slight changes in the
data can drastically alter the result.” Aragon, 292 F.3d at 653.
Similarly, Harris’s use of four persons in her statistical analysis does not
significantly benefit her position and is not deserving of much weight. Four out of
approximately 25 employees were included in TCC’s alleged reduction in force: (1)
Jeffrey Brandt, an assistant mechanic; (2) David Hobbs, a truck driver; (3) Reuel Skinner,
the Mine Manager; and (4) LaRae Harris. Pl.’s Supp. Br. at 3, Dkt. 32. Of those four,
Harris claims that three—herself, Brandt, and Hobbs—were involuntarily separated from
employment and all had lost time claims. In contrast, Skinner retired in December of
2010 and was not replaced. Id. TCC explains that Brandt’s position was terminated
because his position could be absorbed by others, but confirms that Brandt had a total of
three lost time claims: one in 2008, 2009, and 2010 respectively. Additionally, TCC
states that Hobbs was fired after he committed a serious safety violation, and that while

MEMORANDUM DECISION AND ORDER - 20

he had a lost time claim in 2009, there was no evidence that his claim was active in 2011.
TCC also points out that one employee with an active worker’s compensation claim in
2011, Robert Mansfield, was not included in the reduction in force. Mansfield, a mill
operator, later abandoned his job in May of 2011 after he was arrested in Oregon. Def.’s
Supp. Br. at 5, Dkt. 31.
To summarize Harris’s statistical evidence, then, three of the four employees who
were included in TCC’s reduction in force had one or more lost time claims at some point
within the last four years. Of those three, only two—Harris and Brandt—had an active
worker’s compensation claim at the time they were terminated. Finally, another employee
who also had an active worker’s compensation claim in 2011 was not included in the
reduction in force. The Court concludes that it would be unreasonable to draw the
inference that Harris was terminated because of her worker’s compensation claim based
on the facts and circumstances surrounding Harris’s data. Not only is Harris’s sample size
too small to have much, if any, predictive value, but her data does not account for
possible nondiscriminatory variables, such as TCC’s claims that Brandt’s job duties could
be absorbed by others and that Hobbs committed a serious safety violation, which led to
his termination. Both by itself and in conjunction with the other evidence submitted,
Harris’s statistical evidence fails to create a genuine issue of fact that her termination was
motivated by her worker’s compensation claim.
Because Steadman’s deposition testimony is not the confession Harris alleges, and
because Harris’s statistical evidence has little to no probative value, only temporal

MEMORANDUM DECISION AND ORDER - 21

proximity remains. Unfortunately for Harris, case law is clear that “[t]he cases that accept
mere temporal proximity between an employer’s knowledge of protected activity and an
adverse employment action as sufficient evidence of causality to establish a prima facie
case uniformly hold that the temporal proximity must be ‘very close.’” Clark Cnty.
School Dist. V. Breeden, 532 U.S. 268, 273–74 (2001). In Clark, a 20-month gap between
the alleged protected activity and adverse action suggested “by itself, no causality at all.”
Id. at 273; see, e.g., Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (C.A.10 1997) (3–
month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174–1175 (C.A.7
1992) (4–month period insufficient). Aside from the six-month gap between the filing of
her worker’s compensation claim and her termination, Harris has not put forth any
additional, reliable evidence that the two were causally connected. And, per established
case law, a six-month gap by itself suggests no causality at all.
Having considered all of Harris’s evidence, the Court concludes that a rational
trier of fact could not reasonably conclude that a causal connection exists between the
filing of her worker’s compensation claim and her termination. Accordingly, TCC’s
motion for summary judgment as to this claim is granted and Harris’s motion to amend
complaint to plead punitive damages as to this claim (Dkt. 19) is moot.
3.

Breach of the covenant of good faith and fair dealing
TCC argues that because Harris was an at-will employee, the termination of her

employment could not constitute a breach of an implied covenant of good faith and fair
dealing because continued employment was not part of the parties’ agreement. Harris

MEMORANDUM DECISION AND ORDER - 22

counters that a cause of action for breach of an implied covenant of good faith and fair
dealing exists in all employment agreements, including at-will relationships, and that
there is a genuine issue of material fact as to whether TCC violated that covenant “when
it discriminated and retaliated against Harris based on her disability, gender, and worker’s
compensation claim.” Pl. Response, at 20, Dkt. 22.
Idaho has long recognized a cause of action for breach of an implied covenant of
good faith and fair dealing. See Metcalf v. Intermountain Gas Co., 116 Idaho 622, 778
P.2d 744 (1989), modified by Sorensen v. Comm Tek, Inc., 118 Idaho 664, 799 P.2d 70
(1990). This covenant is found in all employment agreements, including employment-atwill relationships. Mitchell v. Zilog, 125 Idaho 709, 715, 874 P.2d 520, 526 (1994);
Sorensen, 118 Idaho at 669, 799 P.2d at 75. The covenant requires only that the parties
perform in good faith the obligations imposed by their agreement. Jenkins v. Boise
Cascade Corp., 141 Idaho 233, 242–43, 108 P.3d 380, 389–90 (2005). It “does not create
a duty for the employer to terminate the at-will employee only for good cause.” Metcalf,
116 Idaho at 627, 778 P.2d at 749. Generally, the covenant is breached when an action by
one party “violates, qualifies or significantly impairs any benefit or right of the other
party under an employment contract, whether express or implied.” Metcalf, 116 Idaho at
627, 778 P.2d at 749 (emphasis added). Most importantly here, “[c]ontinued
employment, of course, does not itself constitute a benefit inherent in an express or
implied-at-will agreement.” Paolini v. Albertson’s Inc., Plan Administrator, 482 F.3d
1149, 1153 (9th Cir. 2007).

MEMORANDUM DECISION AND ORDER - 23

As mentioned, Harris does not dispute that she was an at-will employee. Harris
argues that she was terminated “based on her disability, gender, and worker’s
compensation claim.” As an at-will employee, continued employment was not a “benefit
or right” she was due at the time she was terminated. Therefore, in terminating Harris’s
employment—regardless of why her employment was terminated—TCC did not deny her
any “benefit or right” due. More importantly, as discussed herein, Harris has not
demonstrated that she has a viable claim that she was terminated because of her
disability, gender, or worker’s compensation claim. Accordingly, there was no breach of
the implied covenant of good faith and fair dealing, and TCC’s motion for summary
judgment as to this claim is granted.
4.

Discrimination based on gender
TCC argues that Harris’s gender discrimination claim fails as a matter of law

because there is no evidence that TCC terminated her employment because of her gender.
In her response brief, Harris alleges that she was subjected to discrimination based on
gender under two separate theories: disparate treatment and hostile environment. Each
theory will be discussed in turn.
A.

Disparate treatment

Title VII prohibits discrimination “against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1). In order to survive summary judgment,
a plaintiff must first establish a prima facie case of discrimination. See McDonnell

MEMORANDUM DECISION AND ORDER - 24

Douglas Corp. v. Green, 411 U.S. 792, 807, 93 S.Ct. 1817, 1826–27 (1973). If the
plaintiff does so, the burden then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Id. The plaintiff must then
demonstrate that the employer’s stated reason for its action is, in fact, pretext. Id.
To establish a prima facie case of disparate treatment discrimination Harris must
show: “(1) she belongs to a protected class; (2) she was qualified for the position; (3) she
was subjected to an adverse employment action; and (4) similarly situated men were
treated more favorably, or her position was filled by a man.” Villiarimo v. Aloha Island
Air, Inc., 281 F.3d 1054, 1061–62 (9th Cir. 2002). “A claim of disparate treatment
requires direct or circumstantial proof of discriminatory motive.” Washington v. Garrett,
10 F.3d 1421, 1431–32 (9th Cir. 1993).
Harris fails to satisfy her prima facie case because she cannot demonstrate that
similarly situated men were treated more favorably, or that her position was filled by a
man. While Harris argues that she was “replaced by” a man, case law suggests that an
employee is not technically “replaced” when her duties are simply redistributed to others.
Selby v. Pepsico, Inc., 784 F. Supp. 750, 758 (N.D. Cal. 1991) (no prima facie case of
discrimination where plaintiff’s tasks were divided among remaining employees); Barnes
v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990) (“[A] person is not replaced when
another employee is assigned to perform the plaintiff’s duties in addition to other duties,
or when the work is redistributed among other existing employees already performing
related work.”); see also LeBlanc v. Great American Co., 6F.3d 836, 846 (1st Cir. 1993).

MEMORANDUM DECISION AND ORDER - 25

Additionally, there is no direct or circumstantial evidence of discriminatory
motive here. The only factual allegations that Harris puts forth relating to this claim have
to do with her complaints against truck driver Russ Sorenson. But Sorenson, a truck
driver, had no involvement whatsoever in Harris’s termination. Indeed, when asked
whether she had any factual basis for her allegation that she was terminated because of
her gender, Harris testified, “I don’t have any factual basis for that . . . .” Harris Dep.,
325:19-24, Dkt. 20-7.
Harris has failed to satisfy her prima facie case and has put forth no evidence that
her termination was motivated by her gender; as such, summary judgment as to both her
Title VII and IHRA gender-based discrimination claims is granted.
B.

Hostile environment

In her Response Brief, Harris claims that she was subject to sexual harassment that
created a hostile work environment. Pl.’s Response, at 14, Dkt. 22. Harris’s entire
argument on this score is limited to the following:
Evidence that even TCC initially found Harris’s sexual harassment by Mr.
Sorenson to have been sufficiently severe so as to necessitate her transfer
from driving truck with Mr. Sorenson to working in the office away from
Mr. Sorenson should be sufficient to defeat TCC’s SJ Motion on Harris’s
sexual harassment claims.
Pl.’s Response, at 15, Dkt. 22.
As TCC points out, Harris’s complaint does not allege a hostile environment
claim. Instead, in her complaint, she alleges that she was treated differently than other
employees due to her gender. Compl. at 19, Dkt. 1. Harris’s complaint thus contains a

MEMORANDUM DECISION AND ORDER - 26

discrimination claim based on disparate treatment only, which is clearly distinct from a
hostile environment claim. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68
(1986). A plaintiff may not raise additional claims for the first time through an opposition
to summary judgment brief. Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1314
(11th Cir. 2004); (holding that claims raised for the first time in an opposition to a motion
for summary judgment are not properly before a court); Shanahan v. City of Chicago, 82
F.3d 776, 781 (7th Cir.1996); Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th
Cir.1990).
Even if Harris’s hostile environment claim could be properly raised in her
response to a summary judgment motion, that claim has no support in the record.6
Accordingly, summary judgment as to this claim is granted.
5.

Retaliation
Harris argues that summary judgment as to her retaliation claims should be denied

“because there are genuine issues of material fact regarding whether TCC terminated
Harris’s employment in retaliation because she sought an accommodation for her

6

To make out a prima facie hostile environment claim, a plaintiff must show that “(1) she was
subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the
conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create
an abusive working environment.” Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.1995) (internal
quotations omitted). Harris argues that by allowing her to work in the office away from Russ Sorenson,
TCC somehow acknowledged that Sorenson’s statements were sufficiently severe to alter the conditions
of her employment. This argument is wildly unpersuasive. Harris’s desired outcome would defy logic, as
it would effectively punish TCC for trying to eliminate even the possibility of sexual harassment by
granting Harris’s request to remain working exclusively in the office.

MEMORANDUM DECISION AND ORDER - 27

disability and filed or collected on a worker’s compensation claim.” Pl.’s Response, at
11, Dkt. 22.7 TCC counters that Harris cannot establish a prima facie case of retaliation,
but that regardless, Harris has offered no evidence that TCC’s reason for letting her go
was pretext.
To establish a prima facie case of retaliation, Harris must show that (1) she
engaged in a protected activity; (2) TCC subjected her to an adverse employment action;
and (3) a causal link exists between the protected activity and the adverse action.
Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177, 1188 (9th Cir. 2005). If Harris
establishes a prima facie case, the burden will shift to TCC to articulate a legitimate
nondiscriminatory reason for its decision. See Ray v. Henderson, 217 F.3d 1234, 1240
(9th Cir. 2000). If TCC articulates such a reason, Harris bears the ultimate burden of
demonstrating that the reason was merely a pretext for a discriminatory motive. Id.

7

Based on this sentence, it appears that Harris intended to argue that requesting an
accommodation for a disability also constitutes protected activity. The argument portion of her brief,
however, lacks any such analysis. She does not specify what accommodation was requested, when it was
requested, or how her request for any accommodation was causally connected to her termination.
Similarly, Harris includes a one-sentence argument that TCC’s choice to terminate Harris’s employment,
rather than Russ Sorenson’s, creates a genuine issue of material fact as to whether TCC retaliated against
Harris because she had reported incidents of sexual harassment. Unequivocally, it does not. Harris’s onesentence argument—which fails to cite to both the record and any controlling authority—is insufficient as
a matter of law to create a genuine issue of material fact. Moreover, Harris’s reports of sexual harassment
were based off of a single incident with Sorenson, and were made in 2008—when Sorenson no longer
worked at TCC and a full three years before TCC terminated her. Even assuming that Harris had made a
case that her report of sexual harassment by Sorenson was protected activity, Harris has failed to explain
how that report was causally connected to the termination of her employment, which occurred over three
years later. Thus, the only allegedly protected activity that the Court will consider with regard to Harris’s
retaliation claim is whether filing and collecting on a worker’s compensation claim constitutes protected
activity.

MEMORANDUM DECISION AND ORDER - 28

Whether the filing of—or collecting on—a worker’s compensation claim
constitutes protected activity for purposes of a retaliation claim made under Title VII
appears to be undecided.8 However, looking to the plain language of Title VII itself, the
Court concludes that neither constitutes protected activity under Title VII.
Title VII retaliation claims have their origin in 42 U.S.C.A. § 2000e-3 “Other
unlawful employment practices.” That provision provides:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed any
practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C.A. § 2000e-3 (emphasis added).9 In other words, Title VII only protects
employees “from retaliation for complaining about the types of discrimination it
prohibits.” Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1066 (7th Cir.
2003) (citing Miller v. Am. Family Mutual Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000)
(internal citations omitted)). Harris’s retaliation claim fails because her filing of and
collecting on a worker’s compensation claim does not concern any employment practice

8

See Miller v. Hersman, 759 F.Supp.2d 1, 19 (Dist. Of Columbia, 2010) (assuming without
deciding that the filing of EEOC complaints, worker’s compensation claims, and “whistleblower
complaints” were protected activities).
9

Similarly, a retaliation claim made under the IHRA is based on Idaho Code § 67-5911, which
contains near-identical language.

MEMORANDUM DECISION AND ORDER - 29

that violates Title VII. TCC’s motion for summary judgment as to Harris’s retaliation
claims under Title VII and the IHRA is granted.
ORDER
IT IS ORDERED:
1.

Defendant’s Motion for Summary Judgment or, in the Alternative, for

Partial Summary Judgment (Dkt. 20) is GRANTED.
2.

Plaintiff’s Motion to Amend/Correct Complaint (Dkt. 19) is MOOT.

DATED: September 22, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 30