Timothy v. Oneida County et al

Filing 70

MEMORANDUM DECISION AND ORDER - IT IS ORDERED that: 1. Defendants Oneida County and Dustin Smith's Motion for Partial Summary Judgment (Dkt. 60 ) is GRANTED. 2. Plaintiffs' Motion for Partial Summary Judgment (Dkt. 63 ) is GRANTED IN PART and DENIED IN PART as follows: a. The motion is GRANTED to the extent the Court will treat the following fact as established: Smith read and considered Timothy's attorneys letters dated 2/7/2014 and 3/13/2014 (Dkts. 63-13 and 63-16) in deciding to terminate Timothy's employment. b. The motion is DENIED in all other respects. 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

HEATHER S. TIMOTHY, an individual,
Case No. 4:14-cv-00362-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
ONEIDA COUNTY, a political
subdivision of the State of Idaho;
DUSTIN W. SMITH, individually and in
his capacity as Prosecuting Attorney for
Oneida County, Idaho; SHELLEE
DANIELS, DALE F. TUBBS and MAX
C. FIRTH, individually and in their
capacities as Oneida County
Commissioners,
Defendants.

INTRODUCTION
Before the Court are cross-motions for partial summary judgment. See Dkts. 60,
63. For the reasons explained below, the Court will grant defendants’ motion and dismiss
plaintiff’s due process claim. The Court will deny plaintiff’s motion for partial summary
judgment on the remaining claims for: (1) retaliatory discharge in violation of the First
Amendment; (2) retaliatory discharge in violation of Idaho’s whistleblower statute; (3)
negligent infliction of emotional distress; and (4) retaliatory discharge in violation of
public policy.

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FACTS
Plaintiff Heather Timothy worked as a legal secretary for Oneida County from
November 2005 through March 2014. See SOF 1 ¶ 1. During her employment, Oneida
County promulgated various employee policy manuals. Id. ¶ 3. Timothy says that
certain provisions in the policy manual, as well as written communications she received
from Defendant Dustin Smith, will assist her in demonstrating that she was no longer an
at-will employee of the County.
1.

Provisions of Oneida County’s Personnel Policy Manual
Several provisions of the Oneida County Personnel Policy Manual are relevant

here, beginning with this disclaimer, which is contained on the first substantive page:
THIS PERSONNEL POLICY IS NOT A CONTRACT. ANY AND
ALL EMPLOYMENT WITH ONEIDA COUNTY IS CONSIDERED
TO BE “AT WILL” UNLESS A SIGNED AND WRITTEN
CONTRACT INDICATES OTHERWISE. NO CONTRACT OF
EMPLOYMENT WITH ONEIDA COUNTY WILL BE VALID
UNLESS IT IS SIGNED IN ACCORDANCE WITH PROPER
PROCEDURES BY A SPECIFICALLY AUTHORIZED
REPRESENTATIVE OF THE ONEIDA COUNTY
COMMISSIONERS AND UNLESS IT IS SIGNED BY AND
CONTAINS THE NAME OF THE EMPLOYEE WHO WOULD BE
BENEFITTED BY THE CONTRACT.
Oneida County Personnel Policy, Dkt. 46-8, at 3.
In the next sentence, the manual states that the policies may be changed at any

1

Within this section, the acronym “SOF” refers to Statement of Facts defendants filed in support
of their motion. See Defendants’ Stmt. of Facts, Dkt. 60-2.

MEMORANDUM DECISION AND ORDER - 2

time, without any prior notice:
CHANGES TO THE POLICIES AND BENEFIT OFFERINGS
OUTLINED IN THIS HANDBOOK ARE SUBJECT TO CHANGE
AT ANY TIME, WITHOUT NOTICE. CHANGES MAY BE MADE
IN THE SOLE DISCRETION OF THE GOVERNING BOARD.
Id.
In a later section, the manual states that “new” employees of Oneida County are
subject to a six-month introductory period, during which time “either the employee or
Oneida County may end the employment relationship at will, with or without cause or
advance notice.” Id. at 15. Another paragraph, entitled “Employment Status,” states that
County employees will not be discharged except for cause:
Except as otherwise provided in this paragraph, employees of Oneida
County will not be suspended without pay, demoted with an
accompanying change in pay, or discharged from their positions except
for cause related to the performance of their job duties or other
violations of this policy. Cause shall be determined by the employee’s
supervisor/elected official and shall be communicated in writing to the
employee when the employee status is changed.
Id. at 22 (emphasis in original). Under this same section heading, however, the manual
states that “Oneida County retains full authority, without prior notice, to modify the
general terms and conditions of employment.” Id.
A final set of provisions relevant to this lawsuit relates to discharge, demotion, and
appeal hearings. First, within a section captioned “General Policies,” the manual states
that department heads and elected officials have the authority to “suspend, discharge, or
take other disciplinary action against employees for cause.” Id. at 13. A later section,
captioned “Employee Discipline Procedures and Principles,” contains more specific

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provisions relevant to discharge, demotion, and appeal hearings. Id. at 33-34. This
section begins with a general explanation of the “Purpose of [the] Discipline Policy”:
The purpose underlying the discipline policy of Oneida County is to
establish a consistent procedure for maintaining suitable behavior and a
productive working environment in the workplace. These procedures
are discretionary in nature and minor variations of the processes set
forth herein shall not affect the validity of any actions taken pursuant to
this policy.
Id. at 33. The manual then adopts a framework for disciplinary action, including
progressive disciplinary steps that may be taken, along with an appeal process. Id. at 3335, ¶¶ C.2 – C.4. Regarding the appeal hearing, the manual states: “The personnel
policy of Oneida County establishes the right to a hearing in the event of a discharge or
demotion without attendant change in pay or suspension.” Id. at 35, ¶ V.C.4. The
manual then specifies the various procedures relevant to such a hearing. Id.
2.

Timothy’s Termination
Timothy’s employment was terminated in March 2014. The parties dispute the

reasons for the termination. Timothy says she was fired in retaliation for reporting that
her boss, Oneida County Prosecutor Dustin Smith, had misappropriated County funds.
Smith claims that Timothy was fired for reasons related to her job performance.
3.

Communications Related to Timothy’s Termination
In the weeks leading to Timothy’s March 2014 termination, the parties exchanged

a series of written communications. Smith began the process on February 4, 2014, by
sending Timothy a Notice of Pending Personnel Action. SOF ¶ 8; Dkt. 63-12. The
notice enumerated various forms of alleged misconduct, which allegedly resulted in

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“violations of OCPPM [Oneida County’s Personnel Policy Manual].” Id. at 1. The
notice informed Timothy that Smith intended “to consider discipline consistent with
Oneida County Personnel Policy.” Id. at 3. Timothy was further informed that she could
respond to the notice in writing “and/or” meet with Smith on February 10, 2014 to
discuss the issues. Id. at 1, 3.
Timothy did not respond directly to Smith upon receiving this notice. Instead, on
February 7, 2014, her lawyers sent a letter to the Oneida County Board of
Commissioners, asking them to assist Timothy by “immediately withdrawing the
[February 4, 2014] Notice . . . .” See Dkt. 63-13, at 2. The Commissioners did not
respond to this letter, but shortly after this letter was sent to the Commissioners, Smith
sent a letter to Timothy, suspending her without pay and postponing any February 10,
2014 meeting “until further notice.” Dkt. 63-14, at 1.
A month later, on March 10, 2014, Smith sent another Notice of Pending
Personnel Action to Timothy. See Dkt. 63-15. Timothy’s lawyers responded in writing
on March 13, 2014. Dkt. 63-16. Among other things, Timothy’s lawyers accused Smith
of retaliating against Timothy by sending a Notice of Pending Personnel Action shortly
after Timothy had met with the Idaho State Police “regarding her knowledge of Mr.
Smith allegedly misappropriating county/public funds.” Id. at 2. Smith terminated
Timothy a few days later, in a March 17, 2014 termination notice. See Dkt. 63-18.
In August 2014, Timothy filed this lawsuit. She alleges five claims, for (1)
retaliatory discharge from her public position in violation of the First Amendment; (2)

MEMORANDUM DECISION AND ORDER - 5

denial of due process in violation of the Fourteenth Amendment; (3) retaliatory discharge
from her public position in violation of Idaho's whistleblower statute; (4) negligent
infliction of emotional distress; and (5) retaliatory discharge from Smith’s private office
in violation of public policy. See Dkt. 25, Second Am. Compl.
THE GOVERNING 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
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

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unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The Court must be “guided by the substantive evidentiary standards that apply to
the case.” Liberty Lobby, 477 U.S. at 255. If a claim requires clear and convincing
evidence, the question on summary judgment is whether a reasonable jury could conclude
that clear and convincing evidence supports the claim. Id.
When cross-motions for summary judgment are filed, the Court must
independently search the record for factual disputes. Fair Housing Council of Riverside
County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The filing of crossmotions for summary judgment – where both parties essentially assert that there are no
material factual disputes – does not vitiate the court’s responsibility to determine whether
disputes as to material fact are present. Id.
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,

MEMORANDUM DECISION AND ORDER - 7

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.
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).
DISCUSSION
Defendants’ motion for partial summary judgment is aimed at Timothy’s dueprocess claim. They argue that Timothy was an at-will employee of Oneida County, and,
as such, does not have the necessary property interest to support a procedural due process
claim. Timothy brought a cross-motion on the same topic. She says the undisputed facts
establish that she was not an at-will employee. Timothy also seeks “partial” summary
judgment on all other claims alleged in her complaint. The Court will address each
motion in turn, beginning with the cross-motions for summary judgment on the
procedural due-process claim.
1.

Timothy’s Procedural Due Process Claim
The Fourteenth Amendment to the United States Constitution protects individuals

from the deprivation of liberty or property by the government without due process. A
Section 1983 claim based upon procedural due process contains two elements: (1) a
deprivation of liberty or property interest protected by the Constitution; and (2) a denial

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of adequate procedural protections. See generally 42 U.S.C. § 1983; Brewster v. Bd. of
Educ., 149 F.3d 971, 982 (9th Cir. 1998) (emphasis added). Timothy contends that she
has a constitutionally protected property interest in continued employment with Oneida
County.
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). The long-standing rule in Idaho is that employment is presumptively at-will.
Jenkins v. Boise Cascade Corp., 108 P.3d 380 (Idaho 2005). Thus, “without a
contractual agreement limiting a party’s right to terminate the employment relationship,
either party may terminate it at any time or for any reason without incurring liability.”
Nix v. Elmore Cnty., 346 P.3d 1045, 1052 (Idaho 2015). The Idaho Supreme Court
explains that “[t]his rule reflects the judiciary’s reluctance to bind employers and
employees to an unsatisfactory and potentially costly situation, although we recognize
that either party is likely to be damaged by an unforewarned termination of the
employment relationship.” Mitchell v. Zilog, 874 P.2d 520, 523 (Idaho 1994) (as quoted
in Nix, 346 P.3d at 1052).
Timothy concedes that the parties did not enter into an express, written contract
limiting the County’s right to terminate the relationship. Nevertheless, “courts may
imply a limit to the at-will employment presumption where the circumstances
surrounding the employment relationship could cause a reasonable person to conclude

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that the parties intended a limitation on discharge.” Nix, 346 P.3d at 1052; see also Jones
v. Micron Tech., Inc., 923 P.2d 486 (Idaho 1996).
Timothy says the provisions of the Oneida County Personnel Policy Manual,
together with the notices she received from Defendant Smith in the weeks leading to her
termination, rebut the at-will presumption.
Whether an employee manual constitutes an element of an employment contract is
generally a question of fact unless the handbook “specifically negates any intention on
the part of the employer to have it become part of the employment contract.” Zilog, 874
P.2d at 523-24. It is undisputed that Oneida County’s policy manual expressly disclaims
itself as a contract. As noted above, it states: “THIS PERSONNEL POLICY IS NOT A
CONTRACT.” Dkt. 46-8, at 3. It also states that “ANY AND ALL EMPLOYMENT
WITH ONEIDA COUNTY IS CONSIDERED TO BE “AT WILL” UNLESS A
SIGNED AND WRITTEN CONTRACT INDICATES OTHERWISE.” Id.
Timothy contends that, notwithstanding this disclaimer, other provisions of the
manual limited Oneida County’s right to discharge her at will. Specifically, she points to
the policy provisions stating that employees will not be terminated except for cause, as
well as provisions indicating that county employees have a right to an appeal hearing
during the disciplinary process. See id. at 22, 33-35.
The Ninth Circuit rejected a similar argument in Lawson v. Umatilla County, 139
F.3d 690 (9th Cir. 1998). In that case, the district court concluded that a county employee
had a constitutionally protected interest in his job. Id. at 691. Thereafter, a jury found

MEMORANDUM DECISION AND ORDER - 10

that Lawson was not afforded appropriate due process protections and awarded damages.
Id. The Ninth Circuit reversed, holding, as a matter of law, that Lawson did not have a
protectable property interest because he was an at-will employee. Id. at 693.
On appeal, the key point of discussion was Umatilla County’s policy manual.
Although the manual stated that “[n]o permanent employee shall be disciplined except for
violation of established rules and regulations” it also included the following disclaimer:
“Under no circumstances shall these policies be construed to act as any type of
employment contract with any employee of the County of Umatilla.” Id. at 691.
Additionally, the manual allowed the County to “deviate from the Policies upon written
justification to avoid ‘practical difficulties or unnessary [sic] hardships.” Id.
The Ninth Circuit held that the disclaimer prevented Lawson from overcoming his
at-will status, explaining: “The district court erred because it ignored the importance of
the disclaimer . . . . Oregon courts have consistently held that a disclaimer in an
employee handbook is sufficient to retain an employee’s at-will status.” Id. at 693 (citing
Mobley v. Manheim Servs. Corp., 889 P.2d 1342, 1345 (1995); Gilbert v. Tektronix, Inc.,
827 P.2d 919, 921 (1992).
Idaho courts recognize that “an employer can disclaim what might otherwise
appear to be enforceable promises in handbooks or manuals or similar document.”
Parker v. Boise Telco Fed. Credit Union, 923 P.2d 493, 499 (Idaho Ct. App. 1996).
Recently, in Nix v. Elmore County, 346 P.3d 1045, 1054 (Idaho 2015), the Idaho
Supreme Court cited Lawson approvingly in concluding that a county employee retained

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her at-will status notwithstanding arguably contrary provisions in the policy manual.
In Nix, an Elmore County employee argued that the county was obligated to
provide her with a pre-termination hearing based on a policy manual provision stating
that “[t]he personnel policy of Elmore County establishes the right for full-time regular
and part-time employees to a hearing prior to any final decision on discharge, . . . .’” Id.
at 1050 (emphasis added). But the manual also disclaimed itself as a contract and further
indicated that “no contract of employment” with the county would be valid absent a
signed agreement. Id.
Nix affirmed the trial court’s grant of summary judgment in the county’s favor,
explaining:
Because there was a disclaimer in the ECPP [the policy manual] explicitly
stating that the ECPP was not a contract between employees and Elmore
County, the provision providing for a pre-termination hearing is not
binding on Elmore County. The disclaimer retained Nix’s at-will status
even though ‘the policies also provide[d] . . . for an appeal process.”
Id. at 1054 (citing Lawson v. Umatilla Cnty., 139 F.3d 690, 693 (9th Cir. 1998)).
Timothy says Nix is distinguishable because Nix was placed on probationary
status before she was fired and many communications sent to Nix before her termination
expressly stated that she was an at-will employee. See id. Timothy points out that the
notices she received did not expressly state that she was an at-will employee, and,
moreover, implicitly referenced other provisions in the policy manual by notifying her
that she had violated county policies and by offering her a chance to meet with Smith.
Timothy says that if she was indeed an at-will employee as of March 2014, defendants

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surely would have said so in the various notices she received. See Response Br., Dkt. 65,
at 10-4.
But Timothy glosses over a key distinguishing fact: Oneida County’s employment
manual expressly informs employees – on its first substantive page – that “ANY AND
ALL EMPLOYMENT WITH ONEIDA COUNTY IS CONSIDERED TO BE ‘AT
WILL’ UNLESS A SIGNED AND WRITTEN CONTRACT INDICATES
OTHERWISE.” Dkt. 46-8, at 3 (emphasis added). The policy manual in Nix did not
contain such an explicit, global statement referring to the “at-will” nature of employment.
Compare id. with Nix, 346 P.3d at 1049. Ultimately, that fact was irrelevant because the
later notifications sent to Nix conveyed that she was an at-will employee.
Here, Oneida County’s manual had already conveyed the message that any and all
employment with the County was at-will, absent a signed, written contract indicating
otherwise. Dkt. 46-8 at 4. There is no signed, written contract between the parties, and
the fact that Oneida County later told Timothy why she was being considered for
discipline and offered a pre-termination hearing – rather than simply terminating her
without notice or explanation – does not support the conclusion that Timothy’s at-will
status had changed. As defendants point out, “an employer may provide guidelines,
which are necessary conditions for continued employment, and avoid having them read
as a guarantee for a specific term of employment or as placing limits on the reasons for
discharge.” Nix, 346 P.3d at 1052 (citing Jenkins, 108 P.3d at 387-88).
Under these undisputed facts, a reasonable person could not conclude that the

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parties intended to alter Timothy’s at-will status. Not only did the manual disclaim itself
as a contract and expressly inform employees that “any and all” employment was at will
(absent a contrary, signed agreement), it also stated that the County could change the
policy terms any time, without notice, in its sole discretion. Under these circumstances,
and despite a contrary provision stating that employees would not be terminated except
for cause, Timothy has failed to rebut the presumption that she was an at-will employee
of Oneida County. See Nix, 346 P.3d at 1052; Lawson, 139 F.3d at 693.
In addition to Ninth Circuit and Idaho authorities, the parties have engaged in a
lengthy discussion of this district’s decisions interpreting Lawson. The Court will briefly
comment on two of these cases: (1) Harms v. Jeffries, No. 4:11-cv-111-EJL-CWD, 2013
WL 791452 (Mar. 4, 2013); and (2) Brown v. Valley County, No. 1:12-cv-57-CWD, 2013
WL 1453368 (Apr. 9, 2013).
In Harms v. Jeffries, a Power County Sheriff’s deputy asserted that a policy
manual’s provision stating that no employee could be terminated without cause,
combined with oral statements made by supervisors implying his employment was more
than at-will, created a property interest in continued employment. 2013 WL 791452, at
*12. The policy manual contained disclaimer language, stating that “under no
circumstances is this handbook to be considered a contract . . . .” Id. at *5. Additionally,
Harms signed a form acknowledging that he “understood and agreed” that the manual
was not an employment contract or a guarantee of any particular terms of employment,
and that the policy manual controlled over “verbal statements and representations.” Id.

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The Court held that the combination of: (1) the contractual disclaimer; (2) the policy
manual’s discretionary language; and (3) the waiver form “under which Plaintiff
unequivocally renounced a right to anything other than at-will employment” precluded
Harms from claiming a property interest in continued employment. Id. at *12 n.9.
In Brown v. Valley County, No. 1:12-cv-557-CWD, 2013 WL 1453368 (D. Idaho
Apr. 9, 2103), a Valley County employee asserted he had a legitimate claim of
entitlement to continued employment based on the county’s policy manual. That manual
shared some similarities to Defendant Oneida County’s policy manual: It disclaimed
itself as a contract; it had discretionary language indicating that the policy provisions
could be changed at any time; and it contained a paragraph stating that employees would
not be terminated without cause. Significantly, however, although the Valley County
policy manual indicated that probationary employees were at-will employees, it did not
clarify that other employees were also at will. See id. The Brown Court found this lack
of an “at-will acknowledgment” significant, and then invoked what the parties refer to as
the “three-legged stool” analysis:
The [Harms] Court was clear that it was the three-part combination of
the discretionary disciplinary policies, the contract disclaimer, and the
at-will acknowledgment which precluded a finding that Harms had a
protected property interest in continued employment with Power
County, despite the one clause stating Harms could be discharged only
for cause. Here, the stool is missing a leg. Other than the ninety day
introductory period, the Policy Manual did not unequivocally state that
Brown was an at-will employee.
Id. at *7 (emphasis added).
Defendants argue that this three-legged stool analysis is flawed and contrary to

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governing Idaho authority. Plaintiff, on the other hand, embraces the analysis and argues
that because there is a missing “leg” here – the lack of an at-will acknowledgment – the
Court should find that Timothy has rebutted the at-will presumption.
The Court will save defendants’ global assertion that the Brown “three-leggedstool” analysis is flawed for another day. Regardless of any alleged flaws, all three
“legs” are present. First, although Timothy did not sign a separate, at-will
acknowledgment, the policy manual itself expressly states that “any and all” employment
with Oneida County is at will. Second, the policy manual disclaimed itself as a contract.
Third, the policy manual contained discretionary language, allowing the County to
change the policy at any time, in its sole discretion.
In sum, under the undisputed facts before the Court, a reasonable person in
Timothy’s position could not conclude that the parties intended to alter Timothy’s status
as an at-will employee of Oneida County. Accordingly, she does not have a property
interest in continued employment with Oneida County and her due process claim fails.
See Dyack v. Commonwealth of N. Mariana Islands, 317 F.3d 1030, 1033 (9th Cir. 2003);
Thompson v. City of Idaho Falls, 887 P.2d 1094, 1100 (Idaho 1994). The Court will
therefore grant summary judgment in defendants’ favor on this claim.
2.

Plaintiff’s Motion for Partial Summary Judgment on All Other Claims
Timothy asks the Court to grant partial summary judgment in her favor on each of

her retaliation-based claims. The retaliation-based claims include Timothy’s First
Amendment claim, (Count I), her Idaho whistleblower statute claim, (Count III), her

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claim for negligent infliction of emotional distress (Count IV), and her claim for
termination in violation public policy (Count V).
The Court will deny this motion because each of the above claims hinges, at least
in part, on the reasons Smith fired Timothy, and Timothy concedes that there are factual
disputes on this issue. See Reply, Dkt. 67, at 2.
Given this concession, Timothy’s request that the Court nevertheless find she has
met “her initial burden establishing a prima facie case against the Defendants” is
perplexing. To establish a prima facie case on her First Amendment and state
whistleblower claims, Timothy must prove a causal connection between her speech and
the adverse employment action. See Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)
(First Amendment); Black v. Idaho State Police, 314 P.3d 625, 628 (Idaho 2013). Given
the factual disputes on this issue, the Court cannot find, as a matter of law, that Timothy
has met that burden. The Court will therefore deny plaintiff’s motion for summary
judgment on Counts 1, 3, 4 and 5.
3.

Timothy’s Motion for An Order Treating Certain Facts as Established
Finally, the Court will address Timothy’s request that the Court treat the following

fact as established: “Smith, when he terminated Timothy on March 17, 2014, was aware
that Timothy was accusing him of retaliating against her because of her ongoing
involvement in the criminal investigation of him.” Reply Br., Dkt. 67, at 11. To support
this factual assertion, Timothy points to the March 17, 2014 termination letter she
received. That letter, which is signed by Smith, states:

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You are hereby notified that, after your failure to appear and respond in
person at today’s hearing, and considering your verbal and written
responses to me, including the two (2) letters from your attorney dated
February 7, 2014 and March 13, 2014, and all other related information
which you have been provided regarding this matter, I believe that you
violated the provisions of the Oneida County Personnel Policy referred
to in the Notices that were previously served on you.
Mar. 17, 2014 Letter from Smith to Timothy, Dkt. 63-18 (emphasis added). Timothy
points out that in the referenced letters, Timothy’s attorneys say that Smith is wrongfully
retaliating against Timothy. See Mar. 3, 2014 Letter from Muhonen to Castleton, Dkt.
63-16, at 2.
Defendants do not dispute that Smith read and considered these letters in deciding
to terminate Timothy. Response, Dkt. 66, at 11. Defendants do point out, however, that
although “it remains undisputed that . . . Smith had reason to become aware of Timothy’s
involvement in the ISP investigation when he briefly interviewed her attorney’s letter on
February 10, Smith had no knowledge that Timothy was the person who actually initiated
that investigation against Smith until after Timothy’s termination.” Id.
Under these circumstances, the Court will treat the following discrete fact as
having been established: Smith read and considered Timothy’s attorneys’ letters in
deciding to terminate Timothy’s employment.
ORDER
IT IS ORDERED that:
1.

Defendants Oneida County and Dustin Smith’s Motion for Partial

Summary Judgment (Dkt. 60) is GRANTED.

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2.

Plaintiffs’ Motion for Partial Summary Judgment (Dkt. 63) is GRANTED

IN PART and DENIED IN PART as follows:
a. The motion is GRANTED to the extent the Court will treat the
following fact as established: Smith read and considered Timothy’s
attorneys’ letters dated February 7, 2014 and March 13, 2014 (Dkts. 6313 and 63-16) in deciding to terminate Timothy’s employment.
b. The motion is DENIED in all other respects.
DATED: March 21, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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