Lee v. Olsen et al

Filing 38

MEMORANDUM DECISION AND ORDER. IT IS THEREFORE ORDERED that Defendants' Motion for Summary Judgment 31 is GRANTED. Plaintiff's complaint is dismissed in its entirety. Defendants shall submit a proposed judgment to the Court within 10 days of this Order. Signed by Judge Ronald E. Bush. (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

ANDREA M. LEE,

Case No. 4:14-cv-00160-REB

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
BLAIR OLSEN, JEFFERSON COUNTY
SHERIFF’S DEPARTMENT, JEFFERSON
COUNTY,
Defendants.

Pending before the Court in the above-entitled matter is Defendants’ Motion for
Summary Judgment (Dkt. 31). Having heard oral argument and being otherwise advised,
the Court enters the following memorandum decision and order.
FACTUAL BACKGROUND
Plaintiff Andrea Lee (“Lee”) was hired by the Jefferson County Sheriff’s
Department in 1993 as a driver’s license clerk. (Declaration of Andrea Lee (“Lee
Decl.”), Dkt. 33-7, ¶ 3.) In the late 1990's, Lee was promoted to Driver’s License
Supervisor. (Id. at ¶ 4.) In 2005, Lee was given the additional responsibility of being the
bookkeeper of the Department. (Id. at ¶ 5.) Defendant Blair Olsen (“Olsen”) was the
Sheriff of Jefferson County at all times during Lee’s employment and was her supervisor.
(Id. at ¶ 6.)

MEMORANDUM DECISION AND ORDER - 1

On August 23, 2007, a dress code standard was implemented in the driver’s
license/civil department of the Sheriff’s Department that required female employees to
wear a skirt or dress to work, one day a week. It also required that a uniform was to be
worn two days a week and on Fridays, denim pants or skirt could be worn. (Affidavit of
Blake Hall (“Hall Aff.”), Ex. B, Deposition of Blair Olsen (“Olsen Dep.”), Dkt. 31-10,
Ex. 4 (dress code policy)). There was not any male employees in the driver’s license
division from 2007 to 2012, nor was their a dress code for male employees, if there were
any. (Lee Decl. ¶ 9; Olsen Dep., 62:19-23.) On the days when Lee wore a dress or skirt
to work, she attests that she was subjected to ogling and inappropriate comments by
Olsen and other male employees. (Lee Decl., ¶ 11.) This included that Olsen would
“smile and watch” her and Olsen would tell Lee, “you look nice today” on days she wore
a dress or skirt, but not when she wore pants. (Hall Aff., Ex. A, Deposition of Andrea
Lee (“Lee Dep.”), Dkt. 31-9, 122:15-19, 125:7-9.) Lee never made a complaint about
the dress code between the time the dress code was adopted in 2007 and September
2012.1 (Id. at 116:7-18.) In her deposition she stated that she was “not comfortable with
the policy” and that she expressed to her “employees” that she felt the policy “was
harassment.” (Id. at 113:24-116:3.)

1

In her deposition, Lee suggests that she reported that she felt the dress code policy was
harassment in “September of 2012” when her attorney wrote a letter to the County
Commissioners. As discussed later, there is no mention of the dress code or any gender or sex
discrimination/harassment in that letter. See Lee Dep., 116:4-9; Lee Decl., Ex. A (Dkt. 33-8).
MEMORANDUM DECISION AND ORDER - 2

On July 1, 2010, the Jefferson County Commissioners issued a “Discriminatory
Workplace Harassment Policy and Complaint Procedure” (“the Discrimination Policy.”)
(Olsen Dep., Ex. 3.) The purpose of the Discrimination Policy was “to clearly establish
Jefferson County’s commitment to work to provide a work environment free from
unlawful harassment, to define discriminatory harassment, and to set forth procedures for
investigating and resolving internal complaints of harassment.” (Id.) The Discrimination
Policy expressly provided for investigation and disciplinary action, including termination,
for those who were found to be in violation of the policy. (Id.) For an employee who
felt harassed or discriminated against, the Discrimination Policy contains a “Complaint
Procedure.” (Id.) The Complaint Procedure specifically provides numerous options for
reporting the employee’s complaint to: “their supervisor, Department Head, Risk
Manager (County Clerk), Payroll Deputy Clerk, or County Prosecutor, legal counsel for
the County.” (Id.)
In November or December of 2011, Lee began to discover Olsen was misuing
public funds, specifically that he had issued a cell phone to his wife in Lee’s name. (Lee
Dep., ¶ 87:24-88:1.) Lee was never issued a cell phone by the Sheriff’s Department or
Jefferson County. (Lee Decl., ¶ 12.)

A local newspaper, the Jefferson Star, investigated

the issue and spoke with Lee who informed the newspaper she had never been issued a
cell phone by the county. (Id. at ¶ 15.) Lee reported Olsen’s misuse of funds in April
2012 to Marla Hurst in the clerk’s office. (Lee Dep., 159:9-160:12.)

MEMORANDUM DECISION AND ORDER - 3

In the spring and fall of 2012, Sheriff Olsen was in a reelection campaign.
(Affidavit of Blair Olsen (“Olsen Aff.”), Dkt. 31-3, ¶ 11.) Lee openly supported both of
Olsen’s opponents. (Id.)
On or about July 30, 2012, Jefferson County Sheriff’s Office enacted an amended
media policy that all employees had to sign. (Counsel Declaration (“Dinius Decl.”), Ex.
A, Olsen Dep., Ex. 6, Dkt. 33-2.) The media policy was prepared by Lexipol, a national
organization that prepares standards for sheriff’s offices around the United States and it
was initially adopted by the Jefferson County Sheriff’s Office in 1995. (Olsen Aff., ¶ 12.)
Initially, Lee refused to sign the policy, but eventually she did sign it. (Lee Decl., ¶¶ 1617.)

Lee became aware that Olsen used a public gasoline credit card for personal use,

would use a Sheriff’s Department vehicle to travel and then submit requests for mileage
reimbursement as if he had used his own vehicle, and also improperly used or approved
of his deputies’ use of public funds to purchase meals. (Lee Decl., ¶¶ 18-20.) Olsen also
used public funds to purchase a personal, lifetime membership to the National Rifle
Association. (Id. at ¶ 21.)
During 2012, Olsen began to “systemically strip” Lee of her duties and
responsibilities as Driver’s License Supervisor and bookkeeper by prohibiting Lee’s
assistance with preparing the budget to the County Commissioners and assigning
secretarial work that had been performed by Lee for years to other employees. (Lee
Decl., ¶¶ 27-29.) Olsen also began directly addressing employees under Lee’s
supervision, thereby circumventing her authority and also embarrassed Lee in front of
MEMORANDUM DECISION AND ORDER - 4

other employees by shunning her and creating an atmosphere of stress and hostility. (Id.
at 30-31.) Lee testified that the “shunning” she experienced included Olsen excluding
her from conversations and she was left out of things “the office experienced as a whole.”
Olsen was not as friendly and welcoming as he had been previously with her. (Lee Dep.
at 80:17-82:18.)
Lee attempted to communicate with Olsen regarding her bookkeeping duties, but
Olsen refused to communicate with her. (Lee Decl., ¶¶ 33.) Olsen told Lee that he was
going to install a video camera in her office in the Driver’s License Department. (Id. at ¶
34.)
On August 31, 2012, Lee notified the Jefferson County Commissioners through
her attorney, in writing, that she was being retaliated against by Sheriff Olsen because she
raised concerns regarding his misuse of funds. (Lee Decl., Ex. A. (Dkt. 33-8.)) This
letter asked that Lee have a new supervisor assigned to her. (Id.) She did not receive a
response. (Lee Decl., ¶ 38.) There was no mention of the dress code policy, or any
gender discrimination or harassment in the letter. (Lee Decl., Ex. A.)
On September 14, 2012, Lee requested leave so she could have a surgery
performed. (Olsen Aff., ¶ 13.) Plaintiff eventually requested to be out of the office from
November 1, 2012,2 to November 19, 2012. (Id.) Lee did not return to work on

2

Lee indicated she would work a half day on November 1, 2012, but ultimately did not
show up for work at all that day. She was not reprimanded or disciplined for this. (Olsen Aff.,
¶ 13.)
MEMORANDUM DECISION AND ORDER - 5

November 19, 2012. On December 2, 2012, Lee informed Olsen that she had
complications with her surgery and would be using her remaining leave and returning to
work on December 29, 2012. (Id.) Olsen attempted to reach Lee by telephone prior to
December 29, 2012, but Lee did not answer the phone or return any of Olsen’s phone
calls. (Id.)
On December 31, 2012, Lee left a letter in Olsen’s mailbox by which she resigned
her position with the Jefferson County Sheriff’s Office. (Lee Dep., Ex. B (Dkt. 31-9)).
In the letter, Lee stated she was subjected to a hostile work environment created by Olsen
and that she was resigning because of the disrespect she had for Olsen and his unethical
ways. (Id.)
SUMMARY JUDGMENT 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
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-34 (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 - 6

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 nonmovant 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. See 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 a material fact. See 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. See 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 his favor. See Devereaux, 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.
///
///
MEMORANDUM DECISION AND ORDER - 7

DISCUSSION
A.

Count I - Wrongful Discharge
1.

Constructive Discharge

In Count I, Lee alleges that she was constructively discharged in violation of Title
VII and the Idaho Human Rights Act. (Comp. ¶¶ 50-54.)
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment
practice for an employer . . . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1).
Constructive discharge occurs if an employee can prove he or she was subjected to
intolerable working conditions such that a “reasonable person in his/her position would
have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U.S. 129, 141
(2004); see also Huskey v. City of San Jose, 204 F.3d 893, 900 (9th Cir. 2000).
Generally, an isolated incident is insufficient. A plaintiff must establish “such
aggravating factors, such as a continuous pattern of discriminatory treatment,” to support
a constructive discharge finding. Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406,141112 (9th Cir. 1996) (citation omitted). This showing can be based on the “cumulative
effect” of defendant’s actions. Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110
(9th Cir. 1998). Constructive discharge involves “something more” than normal
harassment, and it does not lie “[u]nless conditions are beyond ‘ordinary’
discrimination[.]” Suders, 542 U.S. at 142. The working conditions must “deteriorate, as
MEMORANDUM DECISION AND ORDER - 8

a result of discrimination, to the point that they become sufficiently extraordinary and
egregious to overcome the normal motivation of a competent, diligent, and reasonable
employee to remain on the job to earn a livelihood and to serve his or her employer.”
Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007) (quoting Brooks v. City of San
Mateo, 229 F.3d 917, 930 (9th Cir. 2000)).
The bar for a finding of constructive discharge is set high “because federal antidiscrimination policies are better served when the employee and employer attack
discrimination within their existing employment relationship, rather than when the
employee walks away and then later litigates whether his employment situation was
intolerable.” Poland, 494 F.3d at 1184. In determining whether conditions are
“intolerable,” the conditions are measured at the time of the employee’s resignation.
Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994) (alleged harasser
was fired two and a half months prior to employee’s resignation and after employee’s
preferred shift at work was restored so there was no constructive discharge). Waiting
until the harassment has ended to resign is not constructive discharge. Montero v. AGCO
Corp., 192 F.3d 856, 861 (9th Cir. 1999) (employee waiting three to four months after
harassment ended to resign is not constructive discharge).
Taking Lee’s allegations as true, she was subjected to the following while
employed at Jefferson County Sheriff’s Department: (1) following the implementation of
a dress code in 2007 that required females to wear a dress or skirt one day a week, she
was subject to “ogling and inappropriate comments by Defendant Olsen and other male
MEMORANDUM DECISION AND ORDER - 9

employees”; (2) after Lee spoke to a local newspaper in the spring of 2012, she was asked
to sign a media policy, that all employees of the Sheriff’s Office were asked to sign; (3) in
July of 2012, Olsen “systemically stripped” Lee of her duties and responsibilities as
Driver’s License Supervisor and as bookkeeper, including prohibiting her assistance with
preparing the budget and assigning secretarial work traditionally performed by Lee to
other employees; (4) Olsen began to directly address employees under Lee’s supervision,
thereby circumventing her authority; (5) Olsen “intentionally embarrassed [Lee] in front
of employees by shunning [her] and creating an atmosphere of stress and hostility”; (6)
Olsen attempted to take away comp time earned by Lee and refused to communicate with
Lee; and (7) Olsen threatened to install a video camera in Lee’s office. (See Lee Decl.,
¶¶ 9-34.)
Most of these allegations stem from 2012, with the exception of the first
allegation, and are not related to Lee’s gender or the dress code. In her deposition, Lee
said that the basis of her claim of wrongful discharge on the basis of her gender was that
“I was being harassed, being a female” and that it was associated with “the dress policy.”
(Lee Dep., 158:14-22.) At the time of her resignation on December 31, 2012, Plaintiff
was on medical leave from work, which began on November 1, 2012. There are no
allegations of any harassment or hostility stemming from the Sheriff’s Department during
those two months. Further, the only (and minimal) contact that Lee had with anyone from
the Sheriff’s Department during that period was in regard to the amount of her remaining
leave time and her return to work date.
MEMORANDUM DECISION AND ORDER - 10

The facts in this record are similar to those in Brooks v. City of San Mateo, 229
F.3d 917 (9th Cir. 2000). In Brooks, the plaintiff was sexually harassed by her coworker
on a single, albeit egregious, occasion. Id. at 921. The harasser placed his hand on the
plaintiff’s stomach, commented on its sexiness, and then later the same day forced his
hand under her sweater and bra to fondle her breast. Id. The plaintiff immediately
reported the behavior and the harasser was placed on administrative leave. Id. at 921-22.
The plaintiff took a leave of absence in order to see a psychologist and recover from the
incident. Id. at 922. Plaintiff returned to work six months later and reported that the
other male employees ostracized her, she had trouble getting her preferred shifts and
vacation time, her sick leave benefits were delayed, and she received what she contended
was an unwarranted negative performance evaluation. Id. It was during the appeal of
that performance evaluation that plaintiff left work and never returned. Id.
The court in Brooks found that the circumstances plaintiff complained of after her
return to work were “[t]aken collectively, . . . not sufficiently extraordinary or egregious
to amount to constructive discharge.” Id. at 930. The court upheld trial court’s decision
that the plaintiff’s claim failed as a matter of law, concluding “we cannot see how a
reasonable trier of fact could find that [plaintiff] was driven from the workplace.” Id.
Lee contends this case is more like the facts of Wallace v. City of San Diego, 479
F.3d 616, (9th Cir. 2007). In Wallace, the relevant discriminatory conduct consisted of:
(1) failing to consider plaintiff for promotion; (2) imposing excessive and discriminatory
disciplinary action in response to actual misconduct (i.e., the punishment did not fit the
MEMORANDUM DECISION AND ORDER - 11

“crime”); (3) refusing to allow plaintiff to teach at the police academy; (4) initiating
disciplinary proceedings for plaintiff’s absence from work while on military duty; (5)
refusing to approve military leave; (6) threatening plaintiff that further misconduct could
result in termination; and (7) issuing an “unacceptable” rating and putting plaintiff on a
90-day performance review. Id. at 626. The court found that this evidence was
“sufficient to find that . . . a reasonable person in [plaintiff’s] position would have felt
compelled to quit . . .” Id.
Lee was “uncomfortable” with the dress code policy and that she “felt it was
harassment.” Lee alleges she was “ogled” and “inappropriate comments” were made
when she wore a skirt or dress. Lee testified that Olsen would tell her she looked nice on
days she work a skirt or dress, but not when she wore pants. Other times, Olsen would
“smile and watch and... it made it very uncomfortable.” On one occasion, Olsen asked
Lee for a hug when she was emotional and upset regarding an accusation from her soon to
be ex-husband’s family that she was having an affair with Olsen.
Lee’s main allegations, however, pertain to a period of time after she reported
Olsen’s misuse of public funds. These include that Olsen reassigned some of her
secretarial work, spoke to Lee’s subordinates directly, and prohibited her from assisting in
preparing the budget. Lee also alleges that Olsen “embarrassed” and “shunned” her, by
withholding job duties from her and leaving her out of conversations. These acts are not
related to Lee’s gender and do not support her claim of gender discrimination. Further,
the conduct Lee complains of is not particularly extraordinary or egregious. The dress
MEMORANDUM DECISION AND ORDER - 12

code was implemented in 2007 and in place at the time of Lee’s resignation at the end of
2012. Lee testified that she was “uncomfortable” with the dress code policy and felt it
was “harassment.” Olsen would tell her she looked nice and smile at her. She speaks of
being ogled, a fact that if true certainly justifies a feeling of being uncomfortable with the
boorish behavior that underlies such things. She also says that she was complimented
upon her appearance when she work a skirt or dress, but not when she wore pants. She
does not, however, suggest that the fact of such compliments was anything more than
compliments, or that such statements rose to the level of extraordinary or egregious
conduct.
Lee was on medical leave for two months prior to her resignation. During her
medical leave, she contacted Olsen on one occasion to tell him that she was extending her
medical leave. Lee was not reprimanded by Olsen for that action, nor did he express any
concern that she was extending her return to work date. Then, at the end of that extended
leave period on December 31, 2012, Lee resigned.
Being “uncomfortable” and even “ostracized” does not create an intolerable work
situation. In general, “adverse working conditions must be unusually ‘aggravated’ or
amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” Tomco
v. Prada USA Corp., 484 F. App’x 99, 100 (9th Cir. 2012) (quoting Turner v. AnheuserBusch, Inc., 876 P.2d 1022, 1027 (Cal. 1994)). On this record, no reasonable juror could
find that Lee’s working conditions in December 2012 were so intolerable that a
“reasonable person in his/her position would have felt compelled to resign.” Suders, 542
MEMORANDUM DECISION AND ORDER - 13

U.S. at 141. To meet her burden, Lee must identify objectively intolerable working
conditions. The conduct alleged to have caused Lee to resign simply is not of the
magnitude to establish a genuine issue of material fact as to whether Lee was
constructively discharged. Therefore, the Court grants Defendants’ summary judgment
on Lee’s wrongful discharge claim under Title VII and the IHRA.3
2.

Faragher/Ellerth Defense

Defendants assert the Ellerth/Faragher affirmative defense to Lee’s gender
discrimination/wrongful discharge claim. See Faragher v. Boca Raton, 524 U.S. 775,
776 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

The first prong

of this defense is that the employer exercised reasonable care to prevent and correct any
harassing behavior. Ellerth, 524 U.S. at 765. Whether the employer has a stated antiharassment policy is relevant to the first element of the defense.4 Id.
No genuine issue of material fact would call into question whether Jefferson
County had a discrimination policy in place that encourages employees to report
harassment or discrimination and indicates that such conduct is not acceptable behavior
by an employee. The Discrimination Policy provides a reporting mechanism for
harassment or discrimination complaints. The policy (1) defined discriminatory

3

Violations of the IHRA for hostile work environment, sex discrimination,
retaliation and constructive discharge rely on the same legal standards as for violations of
Title VII. See Bowles v. Keating, 606 P.2d 458, 462 (Idaho 1979).
4

Lee did not address this defense in her opposition to Defendants’ motion for
summary judgment.
MEMORANDUM DECISION AND ORDER - 14

harassment and retaliation; (2) set forth a complaint procedure; (3) identified disciplinary
measures for policy violations; and (4) assured employees that retaliation for making a
complaint was strictly prohibited. See Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d
864, 877 (9th Cir. 2001). Whether an employer’s policy ensures that a complaining
employee can go around a supervisor alleged to be involved in such prohibited conduct,
in making a complaint, also a key factor for this defense. Kohler v. Inter-Tel
Technologies, 244 F.3d 1167, 1180 (9th Cir. 2001). Jefferson County’s policy provides
for this, and is sufficient to show reasonable care to prevent harassment and
discrimination in the workplace.
The second prong of the defense is that the employee unreasonably failed to take
advantage of any preventative or corrective opportunities provided by the employer or to
avoid harm otherwise. Ellerth, 524 U.S. at 765. An employee’s failure to use a
complaint procedure provided by the employer “will normally suffice to satisfy the
employer’s burden under the second element of the defense.” Id.
Lee was aware of the policy and signed an acknowledgment about reading the
policy. Lee testified that she did not recall ever reporting any acts of discrimination or
harassment to any of the individuals identified in the discrimination policy.5 Lee said that
she complained to the co-workers in her office that she did not like the dress code policy

5

Lee claims she did report it to the commissioners in “September of 2012” but there is
no mention of discrimination, harassment, the dress code policy, or inappropriate comments in
the 2012 letter to the county commissioners. See Lee Decl., Ex. A.
MEMORANDUM DECISION AND ORDER - 15

and that she felt it was harassment. Importantly, however, Lee never complained about
Olsen’s comments regarding how she looked when she wore dresses or other
“inappropriate comments” to anyone in the policy identified to receive complaints.
Accordingly, the second prong is satisfied as a matter of law because Lee unreasonably
failed to take advantage of the preventative and corrective opportunities provided by
Jefferson County, although she knew of their existence. See Montero v. AGCO Corp.,
192 F.3d 856, 863 (9th Cir. 1999). The Court grants Defendants judgment in their favor
on the Faragher/Ellerth defense, to the extent it is applicable.
B.

Counts 3 & 4 - Freedom of Speech
“Public employees do not surrender all their First Amendment rights by reason of

their employment.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006.) “Rather, the First
Amendment protects a public employee’s right, in certain circumstances, to speak as a
citizen addressing matters of public concern.” Id.
The so-called Pickering test, is applied to evaluate First Amendment retaliation
claims such as alleged by Lee in this case. Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009)
(discussing Pickering v. Bd. of Educ., 391 U.S. 563 (1968)). There are five questions:
(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff
spoke as a private citizen rather than a public employee; (3) whether the plaintiff’s
protected speech was a substantial or motivating factor in the adverse employment action;
(4) whether the state had an adequate justification for treating the employee differently

MEMORANDUM DECISION AND ORDER - 16

from other members of the general public; and (5) whether the state would have taken the
adverse employment action even absent the protected speech. Id. at 1070.
Each of the factors must be considered and satisfied, as “failure to meet any one of
them is fatal to the plaintiff’s case.” Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th
Cir. 2013) (en banc). Because “all five factors are independently necessary,” a reviewing
court is free to address a potentially dispositive factor first rather than addressing each
factor sequentially. Id.
On this record, it is the third factor – whether Lee’s speech was a substantial or
motivating factor in an adverse employment action – that leaves no reason to go further.
Lee alleges that after she made a complaint about Olsen’s misuse of public funds in April
of 2012, she suffered “an ongoing pattern of adverse action” that led to her constructive
discharge. (Compl., ¶¶ 66, 80.) She alleges that her protected speech was a motivating
factor in the adverse employment action she suffered. (Id. at ¶ 68, 82.)
Lee alleges that after she spoke with a local newspaper and reported Olsen’s
misuse of public funds in the spring of 2012: (1) Lee was asked to sign a media policy
that all employees of the Sheriff’s Office were asked to sign in July of 2012; (2) Olsen
“systemically stripped” Lee of her duties and responsibilities as Driver’s License
Supervisor and as bookkeeper, including prohibiting her assistance with preparing the
budget and assigning secretarial work traditionally performed by Lee to other employees;
(3) Olsen began to directly address employees under Lee’s supervision, thereby
circumventing her authority; (4) Olsen “intentionally embarrassed [Lee] in front of
MEMORANDUM DECISION AND ORDER - 17

employees by shunning [her] and creating an atmosphere of stress and hostility,” this
included leaving Lee out of conversations; (5) Olsen attempted to take away comp time
earned by Lee and refused to communicate with Lee; and (6) Olsen threatened to install a
video camera in Lee’s office. (See Lee Decl., ¶¶ 9-34.)
To succeed on a First Amendment claim, a plaintiff must show that she suffered an
adverse employment action. Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir. 1998).
Although “the type of sanction . . . ‘need not be particularly great in order to find that
rights have been violated,’” the plaintiff must nonetheless demonstrate the loss of “a
valuable governmental benefit or privilege.” Hyland v. Wonder, 972 F.2d 1129, 1134-36
(9th Cir. 1992) ((quoting Elrod v. Burns, 427 U.S. 347, 359 n. 13, (1976)); see also
Manhattan Beach Police Officers Ass'n v. City of Manhattan Beach, 881 F.2d 816,
818–19 (9th Cir.1989) (denial of promotion); Allen v. Scribner, 812 F.2d 426, 434–35
(9th Cir.1987) (transfer to less desirable job assignment). Mere threats and harsh words
are insufficient. See Pierce v. Texas Dep’t of Criminal Justice, 37 F.3d 1146, 1150 (5th
Cir. 1994); cf. Gini v. Las Vegas Metropolitan Police Depart., 40 F.3d 1041, 1045 (9th
Cir.1994) (“[D]amage to reputation is not actionable under § 1983 unless it is
accompanied by ‘some more tangible interests.’ ”) (quoting Paul v. Davis, 424 U.S. 693,
701 (1976)).
The appropriate inquiry is whether the action is “reasonably likely to deter
employees from engaging in protected activity.” Coszalter v. City of Salem, 320 F.3d at
975-976 (9th Cir. 2003) (internal quotation marks omitted); see also Thomas v.
MEMORANDUM DECISION AND ORDER - 18

Carpenter, 881 F.2d 828, 829 (9th Cir. 1989) (defining the relevant inquiry as whether
the state has taken action with the intention of retaliating against the exercise of
constitutionally protected rights). “Various kinds of employment actions may have an
impermissible chilling effect.” Coszalter, 320 F.3d at 975.
“Minor indignit[ies] and de minimis deprivations of benefits and privileges on
account of one’s speech do not give rise to a First Amendment claim.” Blair v. Bethel
School. Dist., 608 F.3d 540, 544 (9th Cir. 2010). “Rather, for adverse, retaliatory actions
to offend the First Amendment, they must be of a nature that would stifle someone from
speaking out. The most familiar actions are ‘exercise[s] of government power’ that are
‘regulatory, proscriptive, or compulsory in nature’ and have the effect of punishing
someone for his or her speech.” Id. (quoting Laird v. Tatum, 408 U.S. 1, 11 (1972)).
In Brooks v. City of San Mateo, the court recognized that actions such as
“termination, dissemination of a negative employment reference, issuance of an
undeserved negative performance review and refusal to consider for promotion” would all
constitute adverse employment actions. 229 F.3d 917, 928 (9th Cir. 2000). In Brooks,
the plaintiff complained of the following conduct after she returned to work following her
sexual assault claim: (1) she was “ostracized” by other coworkers; (2) she had to attend
workshops along with all other employees regarding the employer’s sexual harassment
policy; (3) a friend of the harasser’s was sometimes on the same floor as her at her office;
(4) her employer used all of the allotted 90 days to process her worker’s compensation
claim; (5) her performance review was downgraded from “satisfactory” to “needs
MEMORANDUM DECISION AND ORDER - 19

improvement”; and (6) she was rescheduled to an unfavorable shift and denied vacation
preference. Id. at 929-930. These last two were not “final” actions of the employer. Id.
The plaintiff was in the process of appealing her evaluation when she decided to resign.
Id. The court found that the plaintiff did not suffer any adverse employment actions and
her retaliation claim was properly rejected. Id.
Adverse employment actions must materially affects the compensation, terms,
conditions, or privileges of employment. Davis v. Team Elec. Co., 520 F.3d 1080, 1089
(9th Cir. 2008). In Strother v. Southern Cal. Permanente Med. Group, the court found
that exclusion from meetings, seminars and positions that would have made employee
eligible for salary increases, denial of secretarial support, verbal and physical abuse, and
more burdensome work schedule amounted to adverse employment actions. 79 F.3d 859,
869 (9th Cir. 1996). In another case, where a supervisor refused to speak to the
employee, the employee was transferred to new supervisor, was excluded from a meeting
about her behavior, and her internet was disabled, the court found there was no adverse
action. See Sutton v. Derosia, No. 1:11-cv-01426-LJO, 2012 WL 4863788, *17 (E.D. Ca.
Oct. 12, 2012).
Lee’s allegations mainly focus on the “hostility” she experienced after she reported
Olsen’s misuse of funds in April of 2012. This included that Olsen no longer addressed
her or included her and she was left out of things “the office experienced as a whole.”
Olsen was not as friendly and welcoming as he was before and he would not respond to
her emails. Lee also testified that as soon as she discovered the issue regarding the cell
MEMORANDUM DECISION AND ORDER - 20

phone in November of December of 2011, she “no longer trusted [Olsen].” Olsen was
also “critical” when Lee turned in her time-off forms. Lee also states that “memos,
general secretarial duties” were taken away from her. However, Lee had no reduction in
compensation, number of hours worked, or job title. (See Lee Dep. at 79:1-82:10,83:2484:3,87:15-23, 89:23-90:3, 110:20-111:4.) These allegations, including that she, along
with all other employees, had to sign a media policy are akin to the allegations before the
courts in Brooks and Sutton.
There is no genuine issue of material fact as to whether Lee suffered an adverse
employment action. Lee’s perceived hostility and the “shunning” or ostracism she
experienced, do not amount to adverse actions. See, e.g., Kortan v. California Youth
Authority, 217 F.3d 1104, 1113 (9th Cir. 2010) (allegations that supervisor was less civil,
stared at her in hostile fashion, and became more critical did not rise to the level of
adverse employment actions ). Additionally, Lee testified that she began to “distrust”
Olsen several months prior, in November or December of 2011, and her interactions with
him changed at that time. Lee alleges that Olsen was “critical” of her time-off sheets, but
she does not allege that she was denied any time-off, or any other privileges or benefits of
employment. Some of her duties were assigned to others, but this did not impact her pay
or job title.
While Lee may have subjectively felt that Olsen’s conduct created a retaliatory
hostile work environment, the standard she must satisfy is whether the adverse actions
were “reasonably likely to deter employees from engaging in protected activity.” The
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alleged adverse actions did not materially affect Lee’s compensation, terms, conditions,
or privileges of employment. There is no record of any action or conduct taken by Olsen
or Jefferson County that a reasonable juror could find constituted adverse employment
actions. Summary judgment will be granted in favor of Defendants on Lee’s claims
under the First Amendment and the Idaho Constitution Article I, Section 9.
C.

Count 2 - Idaho Protection of Public Employees Act
In Count 2, Lee alleges that Defendants have violated the Idaho Protection of

Public Employees Act, found at Idaho Code section 6-2104(1), et seq. (the
“Whistleblower Act”). The Whistleblower Act prohibits an employer from taking
adverse action against an employee because the “employee . . . .communicates in good
faith the existence of any waste of public funds, property, or manpower, or a violation or
suspected violation of law, rule or regulation adopted under the law of this state, a
political subdivision of this state or the United States.”
The Whistleblower Act requires a claim under the Act to be brought within 180
days “after the occurrence of the alleged violation.” Idaho Code § 6-2105. Defendants
argue that Lee’s claim is barred for failure to meet that deadline. Lee counters that
Defendants are estopped from raising this defense because they follow state law which
required that an employer “shall use appropriate means to notify its employees of their
protection and obligation under this chapter.” Idaho Code § 6-2109.
Lee contends that a “defendant may be estopped to rely upon the statute of
limitation if his statements or conduct caused the plaintiff to refrain from prosecuting an
MEMORANDUM DECISION AND ORDER - 22

action during the limitation period.” Mason v. Tucker and Associates, 871 P.2d 846, 850
(Idaho Ct. App.1994). In that case, the court held that a plaintiff could use equitable
estoppel to preclude a statute of limitations defense, but “only for so long as plaintiff did
not know and could not discover the truth . . .”
The statute of limitations in Idaho Code § 6-2105 could have been discovered by
Lee at any point. Lee was represented by counsel as early as August 31, 2012. There
was nothing preventing Lee, and importantly, not any acts of the Defendants preventing
Lee, from “discovering” the fact of this statute and its limitation on when an action must
be brought. Additionally, there is nothing in the Act that places an affirmative duty upon
an employer to tell an employee of the deadline for filing a lawsuit. Defendants are not
equitably estopped from asserting I.C. § 6-2105(2) as a defense to Lee’s claim.
Lee resigned on December 31, 2012. This is the last day an alleged violation of
the Act could have occurred. The deadline for filing her claim under the Whistleblower
Act was June 29, 2013. Lee filed her complaint on April 25, 2014. Accordingly, the
Court finds that Lee’s whistleblower claim under I.C. § 6-2104 is barred and this claim is
dismissed.
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MEMORANDUM DECISION AND ORDER - 23

ORDER
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary
Judgment (Dkt. 31) is GRANTED. Plaintiff’s complaint is dismissed in its entirety.
Defendants shall submit a proposed judgment to the Court within 10 days of this
Order.
DATED: September 29, 2016

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 24