Rydalch v. Bonneville County et al

Filing 30

MEMORANDUM DECISION & ORDER Defendants' Motion for Summary Judgment (Dkt. 20 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KENDALEE RYDALCH,
Case No. 4:14-cv-00196-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
BONNEVILLE COUNTY and MERI
BYBEE,
Defendants.

INTRODUCTION
The Court has before it Defendants Bonneville County and Meri Bybee’s Motion
for Summary Judgment (Dkt. 20). The Court heard oral argument on the motion on June
1, 2015, and now issues the following decision.
BACKGROUND
Plaintiff Kendalee Rydalch was employed by Bonneville County as a juvenile
probation officer until she was terminated on February 15, 2013, in part because she
received a second citation for driving under the influence. Pl.’s Statement of Facts, ¶ 3,
Dkt. 24-1.
On Monday, February 11, 2013, Rydalch arrived at work and requested a meeting
with two supervisors, Kyla Remsburg and Brian Beck, as well as with Meri Bybee, the
Director of Probation Services. Def.’s Statement of Facts, ¶ 4, Dkt. 20-2. When the group
was assembled, Rydalch informed her supervisors that she had received a DUI over the
MEMORANDUM DECISION AND ORDER - 1

weekend. Id. That same day, Bybee placed Rydalch on administrative leave and told
Rydalch that she was going to investigate whether Rydalch should be terminated. Id. at ¶
7. Bybee and Remsburg were aware that Rydalch had previously received a DUI in 1999
when she worked as a juvenile probation officer for Court and Clinical, a private
company that contracted with Bonneville County to provide its juvenile probation
services. Pl.’s Statement of Facts, ¶ 39, Dkt. 24-1. In 2006, Court and Clinical was
transferred to Bonneville County, and nearly all of the Court and Clinical personnel—
including Rydalch, Bybee, and Remsburg—were hired by Bonneville County. Def.’s
Statement of Facts, ¶ 2, Dkt. 20-2. Bybee and Remsburg were also aware that in 2003,
while still at Court and Clinical, Rydalch was charged with an open container violation,
which was later dismissed. Pl.’s Statement of Facts, ¶ 38, Dkt. 24-1.
After placing Rydalch on administrative leave, Bybee began her investigation.
Bybee reviewed the police reports associated with the most-recent DUI, examined
Rydalch’s BAC test results, and spoke with police officers. Id. She also reviewed
Rydalch’s past performance, including complaints received about Rydalch’s work. Id.
Finally, Bybee met with Bonneville County Director of Human Resources Dan Byron,
County Attorney Scott Hall, and County Commissioner Roger Christensen. Id. at ¶ 10;
Bybee Dep., 124:7–22, Dkt. 24-4. Bybee does not recall precisely when this meeting took
place, but it was sometime after she had finished her investigation, and prior to Friday,
February 15, 2013. See id. At this meeting, Bybee presented the results of her
investigation to the others, and they discussed Rydalch’s past performance. Id. at 125:4–

MEMORANDUM DECISION AND ORDER - 2

17. It was at this meeting that the decision to terminate Rydalch was made. Id. at 126:14–
19. Rydalch was not present at the meeting. Id. at 126:11–13.
On or about Thursday, February 14, 2013, a supervisor, under Bybee’s direction,
completed a form entitled “Bonneville County Employee Counseling and Discipline
Record” (“Discipline Form”) that would be given to Rydalch the following day. Pl.’s
Statement of Facts, ¶ 15, Dkt. 24-1. The Discipline Form indicates that the action being
taken against Rydalch is “[d]ischarge from all responsibilities and employment.” The
reasons for the action taken are listed as follows: “DUI, inconsistencies in her story, poor
work performance, liability concerns, and concerns about her performance expressed by
Judge Savage, treatment agencies, and other collateral contacts. Kenda struggles with
policy and procedure and keeping her files current.” Pl.’s Ex. B, Dkt. 24-6. The following
statement of facts supporting the decision to terminate was contained within the
Discipline Form as well:
On February 9, 2013, Kenda received a DUI. When Kenda was first
questioned by the officer concerning how much she drank, she responded
with none. During the field sobriety test, which she failed, she changed her
story to one beer. Kenda agreed to submit to submit to a breath test. She
provided three breath samples with results of .143, insufficient and .140.
On Monday, February 11, 2013, Kenda reported the incident to Meri
Bybee, Kyla Remsburg, and Brian Beck. She reported that she had received
a DUI over the weekend. She stated that she had gone to dinner with a
friend around 7:00 p.m. and drank two beers, she then went to her brother’s
house where she didn't drink after which she went to a local bar and drank
one beer.
The Bonneville County Sheriff[’]s Office was contacted for
verification of the amount of alcohol that would need to be consumed to
blow a .143/.140. They do not believe that Kenda is being truthful in her
statements. In their opinion, it would take approximately 7-8 beers to reach
that level.
MEMORANDUM DECISION AND ORDER - 3

Kenda’s last evaluation dated 8/25/2012 was satisfactory, but
concerns were noted concerning her performance and brought to her
attention. During the current evaluation period, there have been concerns
expressed by Judge Savage, treatment providers, and other collateral
contacts. Kenda struggles with providing adequate written documentation.
Specifically case plans are not always provided within the time allotted,
client notes are disconnected and leave the reader with questions, and
correspondence is often fragmented and with typing errors. Her new
evaluation was due this month at which time the recommendation would
have been to deny a merit step increase and placing Kenda on probation for
her work performance.
Id. at ¶ 23.
On Friday, February 15, 2014, Bybee met with Rydalch, with two other
supervisors also present. Bybee testified that the purpose of the Friday meeting was to
advise Rydalch that the decision to terminate her had been made and to “ask her if she
had anything additional to add.” Id. at 126:20–24. Rydalch had not had any contact with
anyone from Bonneville County between Monday’s meeting and Friday’s meeting. Pl.’s
Statement of Facts, ¶ 17, Dkt. 24-1. At the Friday meeting, Bybee read the Discipline
Form to Rydalch, which Rydalch refused to sign. Id. at ¶ 20.
Rydalch did not know—until the Friday, February 15, 2014 meeting—that there
were “concerns expressed by Judge Savage, treatment providers, and other collateral
contacts” about her job performance. Id. at ¶ 22. At the close of the Friday meeting,
Rydalch was instructed to pack up her personal belongings. Id. at § 25.
The Bonneville County Employee Handbook (“Employee Handbook”), which
Rydalch received a copy of when she began working there, lays out a detailed
disciplinary procedure (“Progressive Discipline Policy”). That section provides:

MEMORANDUM DECISION AND ORDER - 4

The purpose of this policy is to establish a framework for
administering prompt, consistent, and impartial disciplinary or corrective
action [which] may include . . . termination of employment.
Regular full-time . . . employees . . . shall be allowed a hearing with
the elected official responsible for their department or their designated
representative in connection with any proposed action which would result
[in] termination of employment.
The responsible elected official or their designated representative
shall provide eligible employees with written notice of the date, time and
place where the hearing is to be held. The notice shall set forth the reasons
for the proposed action including information or documentation which the
county considered as a basis for the action.
Employees shall respond within two business days to indicate their
intent to attend the hearing or provide a written response for consideration.
Hearings will be informal and generally will not exceed one hour.
The employee will be allowed to present oral testimony or written
statements from witnesses as well as any other information or
documentation they wish to be considered. The employee may be assisted
by an attorney or other representative at their own expense. Discussion
generally will be limited to issues set out as a basis for the action in the
notice.
Employees who feel that they have been . . . discharged for
disciplinary reasons without sufficient cause may access the formal
grievance procedure.
Ex. A. Dkt. 25-1. The formal grievance procedure is also contained within the Employee
Handbook (“Grievance Procedure Policy”). It allows an employee to file a written
grievance and ultimately, if desired, appeal to the Personnel Advisory Council, which is
required to hold a hearing within thirty days of the filing of the appeal. Within twenty
days of the hearing, the Council must issue a written recommendation, and the elected
official with jurisdiction over the affected department will review that recommendation
and issue a final decision within five working days. Pl.’s Ex. C, Dkt. 24-6.
MEMORANDUM DECISION AND ORDER - 5

It is undisputed that Bybee did not consult the Employee Handbook prior to
terminating Rydalch. Id. at ¶¶ 27–30. It is also undisputed that Bybee never informed
Rydalch that under the terms of the Employee Handbook (1) she had a right to a pretermination hearing pursuant to the Progressive Discipline Policy, or that (2) posttermination, she could have utilized the Grievance Procedure Policy. Id. at ¶¶ 27–30.
Rydalch’s Amended Complaint (Dkt. 16) states two causes of action against
Bonneville County and Meri Bybee, both brought under 42 U.S.C. § 1983: (1) a violation
of her right to due process; and (2) gender discrimination. Defendants Bonneville County
and Meri Bybee (collectively, “Defendants”) filed the Motion for Summary Judgment
(Dkt. 20) at issue here, arguing that Rydalch has failed to create a genuine issue of
material fact with regard to both claims. For the following reasons, the Court will deny
Defendants’ motion in full.
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
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
MEMORANDUM DECISION AND ORDER - 6

properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
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 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.
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. 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).
ANALYSIS
Rydalch brings her claims under 42 U.S.C. § 1983, which provides a cause of
action for the deprivation of “rights, privileges, or immunities secured by the Constitution
MEMORANDUM DECISION AND ORDER - 7

and laws” of the United States. Gomez v. Toledo, 446 U.S. 635, 638 (1980) (quoting 42
U.S.C. § 1983). Section 1983 is not a source of substantive rights, but rather “a method
for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386,
393–94 (1989) (citations omitted).
To state a claim under § 1983, a plaintiff must allege a violation of rights either
protected by the Constitution or created by federal statute that is proximately caused by
the conduct of a “person” acting under the color of state law. Crumpton v. Gates, 947
F.2d 1418, 1420 (9th Cir. 1991).
1.

Constitutionally Protected Property Interest

Rydalch must first establish that she possessed a property interest deserving of
constitutional protection. While state law establishes the parameters of an individual’s
substantive interest, federal law is what determines if that interest is a protected property
right. Lawson v. Umatilla Cnty., 139 F.3d 690, 692 (9th Cir. 1998). For continued
employment to constitute a protected property interest, a person must have a reasonable
expectation or a “legitimate claim of entitlement” to the benefit of continued
employment. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972); see also
Harkness v. City of Burley, 110 Idaho 353, 356 (1986) (“employee must have more than a
mere hope of continued employment”).
Here, the parties agree that Rydalch was subject to termination only “for-cause”
and thus, that Rydalch had a reasonable expectation of—and a constitutionally protected
property interest in—continued employment as a juvenile probation officer.
2.

State Actors—Bonneville County and Meri Bybee as Defendants

MEMORANDUM DECISION AND ORDER - 8

Having decided that Rydalch had a property interest in continued employment, the
Court must next determine if Bonneville County and Meri Bybee are “persons” acting
under the color of state law.
Preliminarily, Defendants argue that Bybee should be dismissed as a defendant
because (1) claims against government officials in their official capacities are really suits
against the governmental employer because the employer must pay any damages
awarded; and (2) there is no basis for any allegation against Bybee in her individual
capacity because she acted at all relevant times within the course and scope of her
employment. Id.
Rydalch’s Amended Complaint does not specify whether she is suing Bybee in her
individual or official capacity. Further complicating the inquiry is that “individual”
capacity can refer to two separate doctrines. First, a state official may be named in a
complaint in her “individual” capacity “as a fictional surrogate for the State, such that the
Eleventh Amendment does not apply even though recovery ultimately comes from the
State’s coffers.” Suever v. Connell, 579 F.3d 1047, 1060 (9th Cir. 2009). Second,
personal liability may be imposed on a state official, “such that the money comes from
the official’s own resources.” Id. The Ninth Circuit has recognized that due process and
equal protection claims can be brought against government officials in their personal
capacities. See OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012). Under this
theory, a plaintiff must show only that “the official, acting under color of state law,
caused the deprivation of a federal right.” Hafer v. Melo, 502 U.S. 21, 25 (1991). In such
instances, personal liability does not turn on whether the official acted within the scope of
MEMORANDUM DECISION AND ORDER - 9

her authority; rather, the only relevant inquiry is whether the action was taken under color
of state law. Id. at 28.
When, as here, a Section 1983 complaint is ambiguous as to the capacity in which
an official is being sued, a presumption arises that the official is being sued in her
personal capacity. Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) (The Ninth
Circuit has “presumed that officials necessarily are sued in their personal capacities
where those officials are named in a complaint, even if the complaint does not explicitly
mention the capacity in which they are sued.”)
Thus, Bybee—in her personal capacity—is a proper defendant. While Bonneville
County alleges that there is no basis for any allegation against Bybee in her individual
capacity, whether Bybee acted within the course and scope of her employment is not the
proper inquiry, as explained above. Rydalch has alleged that Bybee, while acting under
color of state law, caused the deprivation of a federal right.1 Therefore, Bybee is a proper
defendant in her personal capacity.2

1

In her Amended Complaint, Rydalch alleges that the “acts of the Defendants . . . and each of
them, individually and under color of the statutes” “resulted in the deprivation of Plaintiff’s property and
liberty interest in her employment without due process of law in violation of her constitutional rights,
privileges and immunities as guaranteed by the Constitution of the United States and more particularly,
the 5th and 14th Amendments to the Constitution of the United States.” Am. Compl., pp. 2, ¶ 4; 6–7, ¶ 29.
2

Insofar as Bybee was named in her official capacity, she is a redundant defendant. Case law is
clear that because suits against government officials in their official capacities are really suits against the
governmental employer, “[t]here is no longer a need to bring official-capacity actions against local
government officials, for under Monell, . . . local government units can be sued directly for damages and
injunctive or declaratory relief.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985).

MEMORANDUM DECISION AND ORDER - 10

The Court also concludes that Bybee was a person acting under color of state law.
A public employee acts under the color of state law when acting in her official capacity.
West v. Atkins, 487 U.S. 42, 50 (1988). Bybee was the official who proposed that
Rydalch be terminated. Bybee Dep., at 19:5–6, Dkt. 24-4. Bybee also testified that she
was in attendance at the meeting in which the decision to terminate Rydalch was made.
Id. at 20:6–10. Finally, according the Bybee, the purpose of the Friday, February 15,
2013 meeting was to advise Rydalch that the decision to terminate her had been made
and “ask her if she had anything else to add.” Id. at 22:14–24. Because Bybee was acting
in her capacity as the juvenile court services director at the time Rydalch was terminated,
Bybee was a person acting under color of state law.3
As to Bonneville County, municipalities are included among those “persons” to
whom § 1983 applies. Monell v. Dept. of Soc. Services of City of New York, 436 U.S.
658, 690 (1978). A municipality can be liable when a constitutional deprivation was
directly caused by a municipal policy, statement, ordinance, regulation, decision, or
custom officially adopted and promulgated by that body’s officers. See id. at 690–91.
Alternatively, a plaintiff may show that the “decision-making official was, as a matter of
state law, a final policymaking authority whose edicts or acts may fairly be said to

3

The doctrine of qualified immunity protects state actors from liability if their conduct does not
violate “clearly established statutory or constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted). It establishes
immunity from suit rather than a defense to liability. Id. Here, however, neither party made a qualified
immunity argument in their briefing. Thus, whether Bybee is entitled to qualified immunity is an
outstanding issue and one that is not properly before the Court for the purposes of deciding this motion.

MEMORANDUM DECISION AND ORDER - 11

represent official policy in the area of decision” or that “an official with final
policymaking authority either delegated that authority to, or ratified the decision of, a
subordinate.” Id. (internal citations omitted).
Here, it is unclear who, if anyone, was the final decision-maker.4 According to
Bybee, the decision to terminate Rydalch was made at a meeting Bybee attended with
Bonneville County Director of Human Resources Dan Byron, County Attorney Scott
Hall, and County Commissioner Roger Christensen. The Court finds that Rydalch has
raised a genuine issue of material fact that the official or officials with final policymaking
authority ratified the decision to terminate Rydalch.
Having determined that Rydalch has sufficiently stated a § 1983 claim, the Court
will next analyze whether Rydalch has established a genuine issue of material fact as to
each of her two causes of action: (1) that Defendants violated her right to due process
when they terminated her; and (2) that Defendants engaged in gender-based
discrimination when they did not terminate a male supervisor who received a DUI while
on the job.
A.

Due Process Claim

The Due Process Clause of the Fourteenth Amendment applies to public
employees who have a property right in continued employment. Cleveland Bd. of Educ.

4

Bybee testified that she proposed Rydalch’s termination to Human Resources Director Dan
Byron, but that she did not know whether Byron was the official with final decision-making authority.
Bybee Dep. 123:3–123:18, Dkt. 24-4.

MEMORANDUM DECISION AND ORDER - 12

v. Loudermill, 470 U.S. 532, 538 (1985). At the very least, due process requires notice of
the contemplated action, the basis and evidence relied upon in deciding to take the
contemplated action, and an opportunity to respond. Id., at 546. The notice requirement is
satisfied with an oral or written notification of the allegations against the employee,
coupled with an explanation of the evidence that supports those allegations. Id. An
opportunity to respond is sufficient when the employee is able to present, in person or in
writing, reasons why a “proposed action should not be taken . . . .” Id. (emphasis added).
Thus, the opportunity to respond must take place before the decision to take the
contemplated action is made.
In order to determine whether Rydalch’s due process claim survives summary
judgment, the Court must carefully examine the timeline of relevant events, paying
particular attention to what Defendants told Rydalch and when the statements were made.
After Rydalch informed her supervisors about her DUI on Monday, February 11, 2014,
Bybee told Rydalch to go home and that an investigation would be conducted. Rydalch
had no additional contact with anyone at Bonneville County until Friday, February 15,
2014. On that day, Bybee read the Discipline Report to Rydalch, thereby notifying
Rydalch of the allegations against her and providing an explanation of at least some of
the evidence that supported those allegations. Most problematic, though, is the
requirement that Rydalch have an opportunity to respond. Rydalch was simply not given
a meaningful opportunity to respond to the allegations against her. By Bybee’s own

MEMORANDUM DECISION AND ORDER - 13

testimony, the purpose of the Friday meeting was to tell Rydalch that she had been
terminated.5 Since the Friday meeting was also the time in which Bybee notified Rydalch
of the allegations against her, Rydalch had no opportunity to meaningfully respond
before the decision to terminate her was made. Further supporting this conclusion is that
while “concerns expressed by Judge Savage, treatment providers, and other collateral
contacts” about Rydalch’s job performance were stated as facts supporting the decision to
terminate her, Rydalch was not made aware of those concerns until the Friday meeting.
Id. at ¶ 22.
Relatedly, Defendants blatantly ignored their own county policy, which required
that Rydalch be provided a pre-termination hearing where she could have responded to
the allegations made against her. Bybee testified that she was not aware of the
Progressive Discipline Policy that required she provide Rydalch with written notice of the
date, time, and place where a pre-termination hearing was to be held, along with a

5

Bybee’s testimony is inconsistent in that she first indicated the following:
On 2-15 when I met with Kenda with Kyla and Brian, I asked her if she had anything she
wanted to clarify. I asked her to read – I explained to her the reason for dismissal. I asked
her if she would like to review it or if she had any additional information she would like
to give me before the decision was made. I asked her if there was anything – more
information. Asked her if she wanted to add. She refused to read the document and she
refused to sign it.

Bybee Dep., 88:9–23, Dkt. 24-4 (emphasis added). Bybee later testified that the decision to “terminate
based on the information we had at the time” was made prior to the Friday meeting, when Bybee met with
with Bonneville County Director of Human Resources Dan Byron, County Attorney Scott Hall, and
County Commissioner Roger Christensen . Bybee Dep., 126:20–24, Dkt. 24-4.

MEMORANDUM DECISION AND ORDER - 14

summary of the allegations lodged against Rydalch. Bybee Dep. 98:22–99:8, Dkt. 24-4. It
is undisputed that Bybee never consulted the Employee Handbook to determine the
proper procedures for terminating Rydalch, and never informed Rydalch of her right to a
hearing. Id., at 25:15–25:25.
In sum, because Rydalch was given no meaningful opportunity to respond to the
allegations against her—before the decision to terminate her was made—Rydalch’s due
process claim survives summary judgment. The Defendants’ motion for summary
judgment as to the due process claim is denied.
B.

Equal Protection Claim

In her Amended Complaint, Rydalch alleges that Bonneville County treated her
“disparately from her male counterpart because of her gender.” Am. Compl. at 6, Dkt. 16.
She explains that in 2007, a male juvenile probation supervisor was on a work-related trip
when he was stopped by a police officer and detained for driving under the influence of
alcohol. Pl. Statement of Facts, at 7, Dkt. 24-1. Unlike with Rydalch, Bonneville County
did not suspend this male employee while it investigated, and ultimately placed him on
probation as opposed to terminating his employment. Id. at 8.
Bonneville County argues that summary judgment should be granted in its favor as
to this claim because Rydalch has failed to assert that the alleged disparate treatment was
based on her membership in a protected class. Def.’s Br. at 6, 8; Dkt. 20-1. Rydalch
responds that “there is a colorable claim that the supervisor was treated differently
because he was a well-liked male employee (as opposed to the Defendants’
characterization of the Plaintiff’s claim that it was anti-woman, the factfinder could
MEMORANDUM DECISION AND ORDER - 15

conclude that the employer was “pro-male”), or in the alternative more likely as a
supervisor to be given special treatment.” Pl.’s Resp., at 17–18, Dkt. 24. Bonneville
County replies that Rydalch’s response is insufficient to survive summary judgment.
While Rydalch has not presented much evidence, she has presented sufficient evidence to
survive the summary judgment stage, as discussed below.
The equal protection component of the Fifth Amendment’s Due Process clause
confers a “federal constitutional right to be free from gender discrimination” at the hands
of government actors. Davis v. Passman, 442 U.S. 228, 234–35 (1979). A plaintiff
alleging a violation of equal protection in a § 1983 claim must ultimately prove that the
defendant acted in an intentionally discriminatory manner. FDIC v. Henderson, 940 F.2d
465, 471 (9th Cir. 1991). But in order to simply survive summary judgment, a plaintiff
must only produce evidence sufficient to establish a genuine issue of fact as to the
defendant’s motivations. Id.
Rydalch may base her case either on direct evidence of discriminatory intent or on
a presumption of discriminatory intent arising from the elements set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Anthoine v. North Central Counties
Consortium, 605 F.3d 740, 753 (9th Cir. 2010).6 Those elements are: (1) membership in a

6

Courts in the Ninth Circuit are not required to apply the formal Title VII McDonnell Douglas
burden-shifting framework in Section 1983 claims; however, because both require a showing of
intentional discrimination, summary judgment decisions as to § 1983 claims often mirror Title VII
analyses. Anthoine, 605 F.3d at 753; see also Keyser, 265 F.3d at 754. The Court agrees with the parties
that it is appropriate to apply the McDonnell Douglas framework here.

MEMORANDUM DECISION AND ORDER - 16

protected class; (2) qualifications for the job or satisfactory performance of the job; (3) an
adverse employment decision; and (4) similarly situated employees not in the protected
class received more favorable treatment. Id. Under the McDonnell Douglas framework,
“[e]stablishment of the prima facie case in effect creates a presumption that the employer
unlawfully discriminated against the employee.” St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 506 (1993) (citations omitted). The defendant may then rebut that presumption
by producing an explanation that the adverse action was taken “for a legitimate,
nondiscriminatory reason.” Id. at 507. At the third step, “the plaintiff must show that the
articulated reason is pretextual either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing that
the employer’s proffered explanation is unworthy of credence.” Nicholson v. Hyannis Air
Service, Inc., 580 F.3d 1116, 1126–27 (9th Cir. 2009) (internal quotation marks omitted).
Very little evidence is required to raise a genuine issue of fact regarding a defendant’s
motive that will require resolution by a fact finder. Id. at 1127.
Here, Rydalch has established a prima facie discrimination claim. As a woman,
she is part of a protected class, and she clearly experienced an adverse employment
decision. In construing the evidence in the light most favorable to Rydalch, the Court
finds that the remaining two elements are also satisfied. First, a reasonable jury could
conclude that Rydalch performed her job in a satisfactory manner. Defendants argue that
Rydalch’s work was not satisfactory. In support of that contention, they note that
complaints from both parents of juvenile offenders, as well as a magistrate judge, were
lodged against Rydalch. These complaints, however, were only communicated to
MEMORANDUM DECISION AND ORDER - 17

Rydalch after the decision to terminate her had been made, so Rydalch had no
opportunity to correct those performance deficiencies. More importantly, in Rydalch’s
last performance review on August 24, 2012, her supervisor rated her overall work
performance as a three out of five, indicating that Rydalch “meets work performance
standards.” The supervisor’s notes indicated:
Kenda is our most senior officer. She is a valued member of the Juvenile
Probation team, and can be relied upon to assist newer officers when
needed. Some concerns have been noted at this time, however they have
been brought to her attention and we believe that they will be corrected by
her next evaluation. At this time a merit step increase would not be
recommended if possible. However, Kenda has time to show improvement
and progress.
Def.’s Statement of Facts, at 4, Dkt. 20-2. Based on this record, a jury could determine
that Rydalch satisfactorily performed her job.
As to the fourth and final element, Rydalch has put forth enough evidence for a
jury to conclude that similarly situated employees not in her protected class received
more favorable treatment. Rydalch alleges that in 2007, a male juvenile probation
supervisor was on a work-related work trip when he was detained for driving under the
influence. Pl.’s Statement of Facts, at ¶¶ 58–67, Dkt 24-1. The supervisor refused to take
the requested breathalyzer test, but was ultimately released after the officer spoke to
Defendant Bybee. Id. The supervisor was not suspended during the county’s internal
investigation, and no final disciplinary action was taken until his case was adjudicated.
Id. Rather than being terminated like Rydalch, the supervisor was placed on probation.
Id. Defendants attempt to explain the discrepancies in discipline by pointing to what they
allege are crucial factual differences. For example, Defendants claim that unlike Rydalch,
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the male supervisor had not received two DUI’s in his lifetime, was not a substandard
employee, and was not dishonest in his report of the DUI. Def.’s Statement of Facts, at
11, Dkt. 20-1. The Court is not persuaded. In construing the evidence in the light most
favorable to Rydalch, a jury may find that her DUI from fourteen years earlier was
simply too old to reasonably be considered in Defendants’ decision-making. And again,
Rydalch’s last performance evaluation notes “some concerns” with her performance, but
hardly establishes that she was “a substandard employee.” Finally, Rydalch may have
been less than truthful when recounting the number of alcoholic beverages that she had
consumed, but she did immediately report her DUI to her supervisors. In sum, a
reasonable jury could conclude that Rydalch has satisfied her prima facie case, thereby
creating a presumption that Defendants unlawfully discriminated against her.
Moving to the second step under McDonnell Douglas, Defendants have articulated
a legitimate, nondiscriminatory reason for its actions. Defendants cite Rydalch’s mostrecently acquired DUI, that she was untruthful in stating that she had only consumed two
beers, and her allegedly poor work performance. These allegations are supported by
substantial evidence, which includes the testimony of Bybee, Rydalch’s performance
evaluation, and the Discipline Form itself. Defendants have thus met their burden of
production.
As to the third step under McDonnell Douglas, courts have repeatedly held that
“very little evidence is necessary to raise a genuine issue of fact regarding an employer’s
motive; any indication of discriminatory motive may suffice to raise a question that can
only be resolved by a fact-finder.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124
MEMORANDUM DECISION AND ORDER - 19

(9th Cir. 2004). Most crucially here, “[a] plaintiff may also raise a triable issue of pretext
through evidence that an employer’s deviation from established policy or practice worked
to her disadvantage.” Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1117 (9th Cir.
2011). Admittedly, Rydalch has not produced much evidence as to this claim, but what
she has produced is sufficient to meet her minimal burden at the summary judgment
stage. There is no doubt that Defendants substantially deviated from their established
policies and practices, to Rydalch’s disadvantage. It is undisputed that the Progressive
Discipline Policy and the Grievance Procedure Policy outlined in the Employee
Handbook were completely ignored throughout Rydalch’s termination process. Pl.’s Ex.
C, ¶¶ 27–30, Dkt. 24-6. Under Earl, this failure is sufficient to raise a triable issue of
pretext. That Defendants cited never-before-disclosed performance-based complaints in
the Discipline Form as justification for the termination also weighs in favor of a finding
that a triable issue of pretext exists.
Because Rydalch introduced the minimal evidence necessary to raise a genuine
issue of material fact as to whether her termination was gender-motivated, summary
judgment as to this claim is denied.7
ORDER
THEREFORE, IT IS HEREBY ORDERED:

7

In light of the Court’s holding, Rydalch’s request within her Response Brief for additional time
pursuant to F.R.C.P. 56(d)(2) to obtain affidavits, declarations, and discovery is moot.

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1.

Defendants’ Motion for Summary Judgment (Dkt. 20) is DENIED.

DATED: August 3, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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