Burch v. City of Chubbuck, et al.

Filing 27

MEMORANDUM DECISION AND ORDER - Defendants Motion for Summary Judgment (Dkt. 19) is GRANTED. Defendants Motion to Strike (Dkt. 21) is DENIED as moot. Signed by Judge Amanda K Brailsford. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
RODNEY BURCH,

Case No. 4:22-cv-00366-AKB

Plaintiff,

MEMORANDUM DECISION
AND ORDER

v.
CITY OF CHUBBUCK, a political
subdivision of the State of Idaho; and
KEVIN B. ENGLAND, in his official and
individual capacity,
Defendants.

Pending before the Court is Defendants’ Motion for Summary Judgment (Dkt. 19) and
Motion to Strike (Dkt. 21). The Court heard oral argument on the motions on April 25, 2024. For
the reasons set forth below, the Court grants the summary judgment motion and denies the motion
to strike as moot.
I. BACKGROUND
Plaintiff Rodney Burch filed this action under 42 U.S.C. § 1983 against his former
employer, Defendant City of Chubbuck, and the Chubbuck Mayor, Defendant Kevin England. In
2015, Mayor England appointed Burch to be the City’s Public Works Director, 1 a position which
Burch held until his resignation in April 2022. (Dkt. 20-1 at ¶ 2; Dkt. 19-4 at p. 16). As the Public
Works Director, Burch was the head of the City’s Public Works Department, and according to his
job description, he was responsible for administering and managing the City’s street maintenance,
water and wastewater, sanitation, parks and recreation, engineering, building inspections, planning
1

Under the City’s municipal code, there are six appointive officers, including the Public
Works Director. See City Code of Chubbuck, Idaho § 2.10.010. The Mayor appoints officers with
the City Council’s consent. Id.; see also Idaho Code § 50-204.
MEMORANDUM DECISION AND ORDER - 1

and economic development, and the City garage. (Dkt. 19-4 at p. 20). Burch also supervised several
managers within the Public Works Department, who in turn supervised over forty City employees.
(Id. at 18; Dkt. 20-1 at ¶ 3). Burch was one of the City’s six appointed officers who reported
directly to Mayor England, and according to his job description, he worked under the direction of
both Mayor England and the City Council. (Dkt. 20-1 at ¶ 3; Dkt. 19-4 at pp. 18, 20).
For much of Burch’s tenure as the Public Works Director, he and Mayor England had a
good working relationship. (Dkt. 20-1 at ¶ 5; Dkt. 19-2 at ¶ 3). During Burch’s first six years with
the City, Burch often communicated his concerns regarding City management and his work to
Mayor England with no issues. Notably, in 2018, Burch expressed concerns to Mayor England
that, in his view, certain accounting and operational practices of the City were a waste of public
funds. (Dkt. 20-3 at 166:1-172:20). Among other things, Burch believed the City misallocated
expenses across its departments and had an inefficient system for authorizing work orders. (Id.).
Based on these and other concerns, Burch and the Public Works Department developed a
Strategic Plan for the City, and the City Council adopted this Plan for Mayor England to
implement. (Dkt. 20-13 at ¶ 13). During this time, Burch also expressed concerns to Mayor
England about Burch’s workload, and in 2020, Burch requested Mayor England’s help in
managing some of his work duties. (Dkt. 20-1 at ¶ 6). Related to this request, Burch provided a
summary of his responsibilities to Mayor England, and according to that summary, Burch’s
workload equated to approximately 2.5 full-time equivalent positions. (Id.; Dkt. 19-4 at p. 32).
In 2021, Burch’s relationship with Mayor England began to change. Around that time,
Burch began advocating to change the City’s organizational structure to adopt a city administrator
position because Burch believed Mayor England had failed to exercise proper oversight of the
City’s government. (Dkt. 20-1 at ¶ 8; Dkt. 20-13 at ¶ 6). Specifically, Burch believed the Strategic

MEMORANDUM DECISION AND ORDER - 2

Plan had withered and died under Mayor England’s supervision. (Dkt. 20-1 at ¶ 16). Burch was
also concerned about Mayor England’s approach to budgeting and the adoption of an online utility
bill-pay credit program (credit program), which decreased City revenue. 2 (Id.). In Burch’s view, a
city administrator would ensure better oversight of the City’s operations, prevent the City from
wasting funds and manpower, guarantee smooth transitions between mayors, and ultimately allow
Mayor England to be more successful. (Id. at ¶ 8; Dkt. 20-13 at ¶ 7).
In early 2021, Burch began discussing alternative organizational structures for the City
with Mayor England and the Human Resources (HR) Director, Scott Gummersall. (Dkt. 20-1 at
¶ 7). In April 2021, Burch sent a letter to Mayor England formally recommending the City change
its organizational structure to include a new position, i.e., a city administrator. (Dkt. 19-4 at p. 30).
According to Burch, Mayor England initially supported the idea and requested Burch provide more
information about the proposal. (Id. at ¶ 9; Dkt. 20-13 at ¶ 9). Burch also discussed the idea of a
city administrator with members of the City Council, and some of the members supported the idea.
(Dkt. 20-1 at ¶ 13; Dkt. 20-13 at ¶ 8).
On June 1, 2021, Burch sent a memorandum to Mayor England with several documents
attached, detailing his proposal for adding a city administrator. (Dkt. 20-15 at p. 2). At least one
of these documents contained Burch’s criticisms of Mayor England’s performance as mayor,
including that Mayor England “[l]acked commitment to follow through or monitor important
operational items”; was “[u]nable or unwilling to hold staff accountable”; had “[n]o
clear/committed vision”; “publicly [took] credit” for issues he did not handle; and had “perception”
problems including spending time on social media instead of working and not being trusted to

2

The online utility bill-pay credit program offered a five-dollar discount for residents who
authorized the City to automatically deduct payment for their utility bills from their bank accounts.
(Dkt. 20-13 at ¶ 15).
MEMORANDUM DECISION AND ORDER - 3

“objectively address issues.” (Id. at 3-4). The document also contained positive and negative
feedback regarding Mayor England “from [the] general staff.” (Id. at 5-6). These criticisms
included that Mayor England “[a]ctively discourage[ed] teamwork”; was “unaware of the actual
problems”; was subject to the City’s Treasurer’s “incredible influence over him”; and was unaware
of the “toxic work environment” at the City. (Id. at 5).
After sending this information to Mayor England, Burch then met with Mayor England to
discuss the proposal and to communicate his ongoing concerns regarding Mayor England’s
implementation of the City’s Strategic Plan, budgeting, and the credit program. (Dkt. 20-13 at
¶¶ 12-16). Shortly thereafter, in June 2021, Mayor England told Burch he no longer supported
Burch’s proposal to hire a city administrator and asked Burch to stop promoting it. (Dkt. 20-1 at
¶ 11). Mayor England also met with the City Council in June 2021 to discuss the city administrator
proposal after City Councilor Melanie Evans asked Mayor England to reconsider his opposition to
the proposal. (Dkt. 20-9 at pp. 1-9). Mayor England refused to change his mind, however, and the
proposal ultimately died. (Dkt. 20-4 at 33:3-34:3). Around this time, Burch noticed Mayor
England’s attitude toward him began to “cool,” and Mayor England began cutting Burch out of
meetings and decisions of the type in which Burch had previously been included. (Dkt. 20-13 at
¶ 17).
As a result of Mayor England’s opposition to the city administrator proposal, City
Councilor Dan Heiner decided to run for mayor against Mayor England. (Dkt. 20-4 at 33:3-34:3).
Burch decided to support Heiner’s candidacy for mayor and placed a campaign sign supporting
Heiner in his yard. (Dkt. 20-3 at 99:19-24). Mayor England learned Burch supported Heiner’s
candidacy sometime before the election after one of Burch’s neighbors called Mayor England and
told him about the sign in Burch’s yard. (Dkt. 19-3, Ex. B at 24:7-25:4). Burch and Mayor England

MEMORANDUM DECISION AND ORDER - 4

never discussed Burch’s support for Heiner, however, and Burch did not otherwise openly
campaign for Heiner. (Id.; Dkt. 19-3, Ex. A at 99:25-100:7).
Mayor England ultimately won reelection on November 2, 2021. (Dkt. 19-2 at ¶ 10). After
the election, Mayor England met with Gummersall to discuss whether he could ask Burch to resign.
(Dkt. 20-7 at 10:4-24). Gummersall asked why Mayor England wanted Burch to resign, and Mayor
England responded he no longer trusted Burch. (Id.) Gummersall and Mayor England met again
later that week, and Mayor England explained his distrust of Burch related to Burch’s city
administrator proposal, and Mayor England expressed concern others were trying to remove him
from office. (Id. at 11:8-18).
That same week, on November 5, 2021, Mayor England met with Burch alone to discuss
their working relationship going forward. (Dkt. 19-2 at ¶ 11; Dkt. 19-3, Ex. A at 100:8-13).
According to Burch, Mayor England asked him to resign because Mayor England said he no longer
had confidence in Burch, although Mayor England acknowledged Burch had done nothing to
warrant his resignation. 3 (Dkt. 19-3, Ex. A at 100:14-25). Burch told Mayor England he would
take the weekend to think about resigning. (Id.) Later that day, one of Burch’s employees in the
Public Works Department informed Burch that Mayor England had asked him to serve as the
interim Director if Burch resigned. (Dkt. 20-1 at ¶ 22).
When Burch returned to work the following week, on November 8, 2021, he informed
Mayor England that he did not want to resign. (Id. at ¶ 23). Mayor England asked Burch to
reconsider his decision, but Burch again refused. (Id. at ¶ 24). During this conversation, Mayor
England mentioned he was surprised Burch had not defended the decision to build a new city hall
3

Mayor England disputes he asked Burch to resign during the meeting, testifying that
instead it was Burch who implied he should be removed from his position. (Dkt. 19-3, Ex. B at
39:12-42:11). The Court resolves this factual dispute in favor of Burch as the nonmoving party.
MEMORANDUM DECISION AND ORDER - 5

to Heiner, who Mayor England referred to as “[Burch’s] candidate.” (Id. at ¶ 25). After this
conversation, Mayor England scheduled a meeting with the City Council to propose removing
Burch as Public Works Director. 4 (Dkt. 19-2 at ¶ 15). The City Council met to discuss Burch’s
removal on November 10, and during this meeting, Mayor England told the City Council he did
not think he and Burch could work together. (Id. at ¶ 16; Dkt. 20-1 at ¶ 28). The City Council
ultimately did not approve removing Burch as the Public Works Director and instructed Mayor
England and Burch to continue working together. (Dkt. 20-1 at ¶ 33).
Following the City Council meeting, Mayor England continued to exclude Burch at work,
oftentimes going directly to Burch’s subordinates to discuss matters concerning public works.
(Dkt. 19-3, Ex. A at 129:18-134:8). Mayor England also removed some of Burch’s work
responsibilities. For example, Mayor England removed Burch from conducting a leadership
training, which Burch had helped to develop and had led in prior years. (Dkt. 19-3, Ex. A at 134:9135:21). Regarding Burch’s removal from the leadership training, Mayor England told
Gummersall he was concerned the training was a means to remove Mayor England from office.
(Dkt. 20-7 at 11:16-18). As a result of these changes, Burch’s workload shrank to less than a fulltime position by March 2022. (Dkt. 19-3, Ex. A at 140:24-141:2). On March 3, 2022, Burch
submitted to Mayor England his resignation as Public Works Director, effective April 8. (Dkt. 201 at ¶ 57). On April 7, Burch provided a letter “to Human Resources” explaining--among other
things--that he was resigning because of Mayor England’s alleged retaliation against him for
“exercising [his] right to vote for another candidate.” (Dkt. 20-8).
On August 23, 2022, Burch initiated this lawsuit against the City and Mayor England.
(Dkt. 1). His complaint alleges they retaliated against him for (1) advocating that the City change
4

Under the City’s municipal code, the mayor can only remove appointed officers with the
City Council’s approval. See City Code of Chubbuck, Idaho § 2.10.010(B); Idaho Code § 50-206.
MEMORANDUM DECISION AND ORDER - 6

its organizational structure to hire a city administrator and (2) supporting Mayor England’s
opponent, Heiner, in the 2021 Chubbuck mayoral election. The complaint asserts two causes of
action: a First Amendment retaliation claim under § 1983 and a state-law claim for violation of the
Idaho Protection of Public Employees Act (IPPEA), Idaho Code §§ 6-2101 through 6-2109.
Following discovery, Defendants moved for summary judgment. (Dkt. 19).
II. 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). Material facts are those that may affect the outcome of the
case, and a dispute about a material fact is genuine if there is sufficient evidence for a reasonable
jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986). The mere existence of a scintilla of evidence is insufficient. Id. at 252. Rather,
“there must be evidence on which the jury could reasonably find for the [nonmoving party].” Id.
In deciding whether a genuine dispute of material fact exists, the court must view the facts
in the light most favorable to the nonmoving party. Id. at 255; Devereaux v. Abbey, 263 F.3d 1070,
1074 (9th Cir. 2001) (“Viewing the evidence in the light most favorable to the nonmoving party,
we must determine whether there any genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.”) (citing Lopez v. Smith, 203 F.3d 1122, 1131 (9th
Cir. 2000)). The court is prohibited from weighing the evidence or resolving disputed issues in the
moving party’s favor. See Tolan v. Cotton, 572 U.S. 650, 657 (2014).
Under Rule 56(c)(1)(A), the nonmoving party asserting a fact is genuinely disputed must
support that assertion by particularly citing to materials in the record. The opposing party,
however, may object to the cited material if it “cannot be presented in a form that would be

MEMORANDUM DECISION AND ORDER - 7

admissible in evidence.” Fed. R. Civ. P. 56(c)(2). That a court may only consider admissible
evidence in ruling on a summary judgment motion is well established. Beyene v. Coleman Sec.
Servs., Inc., 854 F.2d 1179, 1181-82 (9th Cir. 1988).
III. ANALYSIS
Defendants move for summary judgment on both of Burch’s claims under § 1983 and
IPPEA. Defendants also move to strike certain deposition testimony of City Councilor Evans,
arguing it is inadmissible hearsay. (Dkt. 21). Because the Court grants Defendants’ summary
judgment motion for the reasons discussed below, it denies the motion to strike as moot.
A.

Section 1983 Claim - First Amendment Retaliation

That “public employees do not surrender all their First Amendment rights by reason of
their employment” is well established. “Rather, the First Amendment protects a public employee’s
right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti
v Ceballos, 547 U.S. 410, 417 (2006). For this reason, “the state may not abuse its position as
employer to stifle the First Amendment rights its employees would otherwise enjoy as citizens to
comment on matters of public interest.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)
(cleaned up). An employer’s retaliation in response to an employee’s protected speech is
actionable under § 1983.
To establish a prima facie First Amendment retaliation claim, the plaintiff must prove:
(1) he engaged in protected speech; (2) the defendant took an adverse employment action against
him; and (3) the protected speech was a substantial or motivating factor for the adverse
employment action. Dodge v. Evergreen Sch. Dist. #114, 56 F.4th 767, 776 (9th Cir. 2022). “If the
plaintiff establishes a prima facie case, ‘the burdens of evidence and persuasion . . . shift to the
Defendants to show that the balance of interests justified their adverse employment decision.’ ” Id.

MEMORANDUM DECISION AND ORDER - 8

(quoting Eng, 552 F.3d at 1074). Additionally, the employer can avoid liability by showing it
would have taken the same adverse employment actions against the employee even in the absence
of the employee’s protected speech. See Eng, 552 F.3d at 1072 (citation omitted).
Here, Burch alleges Mayor England violated his First Amendment rights by retaliating
against him in response to his protected speech. 5 Burch suggests the following instances of his
speech are protected under the First Amendment: (1) his communications with Mayor England
proposing a city administrator position, (2) his communications with City Council members
regarding his city administrator proposal, and (3) his yard sign in support of Heiner’s mayoral
candidacy. As a result of this protected speech, Burch contends Mayor England took several
adverse employment actions against him, including asking him to resign, requesting the City
Council remove him as Public Works Director, and limiting his workload. Burch also alleges he
was constructively discharged. In their summary judgment motion, Defendants argue that these
allegations do not satisfy the prima facie elements of a retaliation claim and that, even if they did,
Burch’s criticisms of Mayor England provided a nonpretextual and legitimate interest in taking
adverse action against Burch. 6
The Court concludes Burch has failed to present sufficient evidence to establish a prima
facie retaliation claim under § 1983. As discussed below, Burch’s communications regarding his
Many of Burch’s allegations and arguments focus on Mayor England’s conduct. For Burch
to prove the City is liable under § 1983, he must establish that “action pursuant to official
municipal policy” caused his injury. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658, 691 (1978). Official municipal policy includes the decisions of a local government’s
policymaking officials, such as a mayor. Connick v. Thompson, 563 U.S. 51 (2011). In other words,
if Mayor England’s conduct is actionable, the City is liable for that conduct.
5

6

Defendants have also argued Burch’s political speech is not protected under the
policymaker exception to the First Amendment. See Fazio v. City & Cnty. of San Francisco, 125
F.3d 1328, 1332 (9th Cir. 1997) (citing Elrod v. Burns, 427 U.S. 347 (1976)); Branti v. Finkel,
445 U.S. 507, 518 (1980)). The Court does not need to address this issue, however, because Burch
fails to establish a prima facie retaliation claim even assuming he is not a policymaker.
MEMORANDUM DECISION AND ORDER - 9

advocacy for a city administrator position are not protected speech because they were spoken in
his capacity as a public employee rather than as a private citizen. Additionally, there is insufficient
evidence to conclude Burch’s yard sign supporting Heiner for mayor (or Burch’s general support
for Heiner otherwise) was a substantial or motivating factor in any adverse action taken by Mayor
England. Finally, Burch’s criticism of Mayor England provided a nonpretextual explanation for
Mayor England’s conduct, and Burch has failed to show Mayor England’s explanation that he
distrusted Burch was a pretext for Mayor England’s actions.
1. Protected Speech
“Whether a public employee . . . has engaged in speech protected by the First Amendment
breaks down to two inquiries: (1) whether he ‘spoke on a matter of public concern,’ and (2) whether
he ‘spoke as a private citizen or public employee.’ ” Dodge, 56 F.4th at 777 (citing Johnson v.
Poway Unified Sch. Dist., 658 F.3d 954, 961 (9th Cir. 2011)). Here, the speech at issue is:
(1) Burch’s communications with Mayor England and the City Council about hiring a city
administrator; and (2) Burch’s yard sign endorsing Mayor England’s mayoral opponent, Heiner. 7
a. Matter of Public Concern
Whether speech relates to a matter of public concern is a question of law. See Eng, 552
F.3d at 1070. “Speech involves a matter of public concern when it can fairly be considered to relate
to any matter of political, social, or other concern to the community. ” Id. (citation omitted).
Communications regarding the functioning of government generally qualify as speech relating to
a matter of public concern. See id. at 1072. Here, the Court concludes Burch’s communications
regarding the city administrator position and his yard sign pertained to matters of public concern.

7

The Court also considers that Burch otherwise generally endorsed Heiner, although he
attests his support was “primarily” limited to “putting a sign on [his] front lawn.” (Dkt. 20-13 at
¶ 18).
MEMORANDUM DECISION AND ORDER - 10

Burch’s yard sign was a public expression of support for a candidate in a local election. Such
speech implicates a matter of public concern because it is inherently political and relevant to a
community matter. Likewise, Burch’s communications regarding the city administrator proposal
involved a matter of public concern because they related to the functioning and structure of the
City’s government. Specifically, the proposal recommended altering the mayor’s job
responsibilities; was considered in a special meeting by the City Council; and involved a matter
affecting politics and the community at large.
b. Private Citizen or Public Employee
Whether Burch’s speech about these public concerns—the mayoral election and the
structure of City government—is protected depends on whether he spoke regarding these matters
as a private citizen or in his capacity as a public official. “Speech made by public employees in
their official capacity is not insulated from employer discipline by the First Amendment, but
speech made in their private capacity as a citizen is.” Brandon v. Maricopa Cnty., 849 F.3d 837,
843 (9th Cir. 2017) (citing Garcetti, 547 U.S. at 421). “Statements are made in the speaker’s
capacity as citizen if the speaker had no official duty to make the questioned statements, or if the
speech was not the product of performing the tasks the employee was paid to perform. ” Eng, 552
F.3d at 1071 (citation omitted). The ultimate determination of whether speech is spoken as a
private citizen or as a public employee is a question of law, but determining the scope of the
employee’s job responsibilities is a question of fact. Id.
To determine whether an employee’s speech fell within his job duties, the Ninth Circuit
identifies three factors in Dahlia v. Rodriguez, 735 F.3d 1060, 1074-76 (9th Cir. 2013) (en banc),
for consideration: (1) whether the employee confined his communication to his chain of command;
(2) the subject matter of the communication; and (3) whether the public employee spoke in direct
contravention of his supervisor’s orders. An employee’s formal job description is not dispositive
MEMORANDUM DECISION AND ORDER - 11

of whether an employee’s speech was within the scope of his job responsibilities because “[f]ormal
job descriptions often bear little resemblance to the duties an employee actually is expected to
perform[.]” Garcetti, 547 U.S. at 424-25.
Here, the Court concludes Burch’s yard sign supporting Heiner was expressed in Burch’s
capacity as a private citizen, and Defendants do not argue otherwise. The Court concludes,
however, that Burch’s communications regarding the city administrator proposal were made in his
capacity as a public employee under the Dahlia factors. First, nothing in the record shows Burch
did not confine his communications regarding the proposal to his chain of command. See Dahlia,
735 F.3d at 1074 (citation omitted) (“When a public employee communicates with individuals or
entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.”).
Rather, the record shows Burch spoke with Mayor England, members of City Council, and the HR
Director, Gummersall, about the proposal.
Both Mayor England and the City Council were undisputedly in Burch’s chain of
command. According to Burch’s job description he performed his work under the Mayor’s and the
City Council’s general direction. (Dkt. 19-4 at p. 20). See also City Code of Chubbuck, Idaho
§ 2.10.010 (providing for Mayor and City Council’s removal). Further, although Gummersall was
not Burch’s supervisor or subordinate, Burch worked with Gummersall to develop a job
description for a city administrator. (Dkt. 20-13 at ¶ 5). That Burch worked with the HR Director
to develop a city administrator job description indicates not that he was proposing the position as
a private citizen, but rather that he was working in his capacity as a City employee with another
City employee whose responsibility it was to develop job descriptions.
Second, the record shows the subject matter of Burch’s city administrator proposal was
within his responsibilities as a City employee. See Dahlia, 735 F.3d at 1074-75 (considering

MEMORANDUM DECISION AND ORDER - 12

subject matter of communication). Burch’s job duties undisputedly included strategic planning. As
Burch states, “[i]n 2018, he spearheaded the creation of a Strategic Plan for the city,” which he
attests included obtaining public input for the Plan, creating the Plan, presenting the Plan to the
City Council, and obtaining approval for the Plan. (Dkt. 20-1 at p. 4; Dkt. 20-13 at ¶ 13). Further,
Burch attests Mayor England let the Plan fall “to the wayside” and Burch’s subsequent proposal
was to have a city administrator “oversee the entire city operation as a whole to ensure the goals
in the Strategic Plan were being met.” (Dkt. 20-13 at ¶¶ 13-14). Burch specifically acknowledges
the impetus for his advocacy to alter the City’s organizational structure was Mayor England’s
purported mismanagement of the Strategic Plan, the City’s credit program, and the mayor’s
approach to budgeting. (Id. at ¶ 12). That Burch’s job description did not specifically identify
strategic planning as a duty is not dispositive of the actual role he played within the City’s
government. See Garcetti, 547 U.S. at 424-25 (noting job description may bear little resemblance
to actual duties performed). Rather, the record shows Burch’s performance of strategic planning
duties flowed from his role as a high-level City employee and not as a private citizen.
Finally, the record shows Burch’s advocacy for a city administrator did not contravene his
superiors’ orders. See Dahlia, 735 F.3d at 1075 (“[W]hen a public employee speaks in direct
contravention to his supervisor’s orders, that speech may often fall outside of the speaker’s
professional duties.”). According to Burch, the City Council supported his idea to add a city
administrator, and Mayor England initially did as well. Burch also provided his June 1
memorandum to Mayor England at the mayor’s request, and when Mayor England later asked
Burch to stop advocating for a city administrator proposal, Burch complied. (Dkt. 19-4 at p. 12)
(“Mayor England changed his mind and indicated he did not support the idea and asked us to stop
promoting it. At that time, I stopped advocating for the change and went back to business as

MEMORANDUM DECISION AND ORDER - 13

normal.”). No evidence shows Burch disobeyed his superior’s orders by advocating for a city
administrator.
In summary, the Dahlia factors indicate Burch spoke in his capacity as a public employee
rather than as a private citizen when advocating for a city administrator. Accordingly, the First
Amendment does not protect Burch’s communications about the city administrator proposal, and
those communications cannot support his retaliation claim.
2. Substantial or Motivating Factor for Adverse Employment Actions
Because only Burch’s yard sign constituted protected speech, the Court must consider
whether the yard sign was a substantial or motivating factor for any alleged adverse employment
action Burch suffered. The second and third elements of a retaliation claim require the plaintiff to
show the employer “took adverse employment action . . . and that the speech was a substantial or
motivating factor in the adverse action.” See Eng, 552 F.3d at 1071 (cleaned up); Dodge, 56 F.4th
at 778, 781. Whether a plaintiff has made such a showing is a question of fact. See Eng, 552 F.3d
at 1071. Here, Burch has alleged Mayor England took adverse action against him in response to
his speech when Mayor England (1) asked him to resign, (2) requested the City Council remove
him as Public Works Director, (3) limited his workload, and (4) constructively terminated him.
As a preliminary matter, the Court concludes the record does not support Burch’s claim
the City constructively discharged him. Unlike other adverse employment actions, constructive
discharge generally requires proving an employee’s “working conditions [had] become so
intolerable that a reasonable person in the employee’s position would have felt compelled to
resign.” Green v. Brennan, 578 U.S. 547, 555 (2016) (quoting Pa. State Police v. Suders, 542 U.S.
129, 141 (2004)). Working conditions are intolerable if they are “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
MEMORANDUM DECISION AND ORDER - 14

F.3d 1174, 1184 (9th Cir. 2007) (quoting Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.
2000)); see also Waterman Nationwide Mut. Ins. Co., 201 P.3d 640, 645 (Idaho 2009) (“The
inquiry is objective: Did working conditions become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign?”) (quoting Poland, 494 F.3d at 1184).
This standard is exacting. “[E]vidence of transfer and demotion is insufficient, as a matter
of law, to establish a constructive discharge.” Poland, 494 F.3d at 1184. Likewise, an employee is
not constructively discharged merely because his “managerial responsibilities were reduced.”
Huskey v. City of San Jose, 204 F.3d 893, 901 (9th Cir. 2000). For this reason, although
constructive discharge is generally a question of fact determined under the totality of the
circumstances, courts may resolve the issue as a matter of law if the plaintiff fails to present facts
sufficient to show the situation was so “extraordinary and egregious to overcome the normal
motivation of a competent, diligent, and reasonable employee to remain on the job.” Swirski v.
ProTec Bldg. Servs., No: 3:20-cv-01321-LAB-MDD, 2021 WL 5771222, at *5 (S.D. Cal. Dec. 6,
2021) (quoting Poland, 494 F.3d at 1184).
Here, Burch argues the City constructively discharged him because his “enforced idleness
had become so intolerable that his resignation was a fitting response” and because he “remained
responsible for matters outside his control . . . he could not, in good conscience, remain.” (Dkt. 20
at pp. 2, 4). In support, he relies on Parrett v. City of Connersville, Indiana, 737 F.2d 690 (7th Cir.
1984). In that case, Parrett was “chief of detectives” who investigated a forgery implicating
Cordes’ daughter and had “an angry exchange” with Cordes regarding the matter. Id. at 692-93.
Later, Cordes was appointed city attorney, a position with authority over the police department,
including Parrett. Id. at 693. Upon becoming the city attorney, Cordes asked Parrett to resign, and
when Parrett refused, “Cordes made no secret of the fact that he was ‘going to get [Parrett]’ because

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of the way Parrett had investigated the charges involving Cordes’ daughter.” Id. Thereafter, Parrett
was “removed as chief of detectives and transferred to the uniformed force as ‘line captain’”; was
not “assigned any police duties as ‘line captain’”; was “given a windowless room to sit in that
formerly had been a storage closet”; and “spent his shift sitting at the desk with nothing to do.” Id.
Defendants’ treatment of Parrett caused him to suffer “symptoms of nervous collapse [including]
cardiac abnormalities”—a fact found by the jury after Parrett sued defendants for violating § 1983.
Id. On appeal from the jury verdict for Parrett, the Seventh Circuit concluded “the jury was entitled
to find that the hospitalization and medical treatment were consequences of the measures that the
defendants had taken to make Parrett’s life at work intolerable.” Id. at 694.
Other than Mayor England asking Burch to resign, Burch’s case does not resemble Parrett.
Unlike Parrett, Burch’s working conditions were not so intolerable as to make him physically ill;
Mayor England never verbally expressed any intent to “get” Burch because he supported another
mayoral candidate; and Burch was not relegated to a closet without any responsibilities. Indeed,
by Burch’s own admission, his work duties at the time of his resignation remained near full time.
(Dkt. 19-3, Ex. A at 140:24-141:2). See Huskey, 204 F.3d at 901 (ruling employee is not
constructively discharged merely because his “managerial responsibilities were reduced”).
Rather than asserting his working conditions were intolerable, Burch acknowledges his
own “conscience” was the reason for his resignation. (Dkt. 20 at p. 4). For example, he attests, “I
was not ready to give up my position as the public works director. However, I could not stay and
be responsible for decisions, including financial decisions, being made without my knowledge.”
(Dkt. 20-13 at ¶ 30). No evidence supports, however, that Burch would be responsible for any
decisions others made or that he would ultimately be excluded from the final budgeting process
for his department. Based on this record, the Court concludes no reasonable jury would conclude

MEMORANDUM DECISION AND ORDER - 16

Burch’s working conditions had become so intolerable that a reasonable person in his position
would have felt compelled to resign.
Having concluded Defendants did not constructively discharge Burch, the Court considers
the remaining adverse employment actions Burch alleges, which include that Mayor England
asked him to resign, requested City Council remove him as Public Works Director, and limited his
workload. Assuming these actions were adverse, the Court concludes the evidence is insufficient
to establish a causal connection between these actions and Burch’s yard sign. To establish a causal
connection between the protected speech and adverse action, “[i]t is not enough to show that an
official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause
the injury.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (citation omitted). An employee may
make this showing using either direct or circumstantial evidence. See Ulrich v. City & Cnty. of San
Francisco, 308 F.3d 968, 979 (9th Cir. 2002). Examples of circumstantial evidence include: “[1]
a proximity in time between the protected speech and the adverse action, [2] the defendant’s
expression of opposition to the protected speech, and [3] evidence that the defendant proffered
false or pretextual explanations for the adverse action.” Boquist v. Courtney, 32 F.4th 764, 777
(9th Cir. 2022) (citation omitted).
Considering these factors, the Court concludes no reasonable jury could find Burch’s yard
sign caused Mayor England’s adverse actions. Although Mayor England’s requests that Burch
resign and that the City Council discharge him were proximate in time to the November 2021
election results, Burch admits Mayor England “became cool towards” him months earlier in June
or July 2021 after Burch directly criticized Mayor England’s performance in numerous respects.
(Dkt. 20-13 at ¶ 17). At this time, Burch admits Mayor England “started cutting [him] out of
meetings and decisions.” (Id.) The record indicates Mayor England’s conduct followed Burch’s

MEMORANDUM DECISION AND ORDER - 17

criticism of him, not Burch’s support for Heiner. Further, Mayor England never expressed any
opposition to Burch’s support for Heiner. In fact, that Mayor England never discussed with Burch
his yard sign or his support for Heiner otherwise is undisputed. (Dkt. 19-3, Ex. A at 99:25-100:7,
Ex. B at 24:24-25:1).
Finally, even if Burch could establish a prima facie retaliation claim based on his support
for Heiner, Mayor England has established that “the balance of interests” justified his actions and
that he would have taken the same actions even if Burch had not supported Heiner for mayor. See
Eng, 552 F.3d at 1072, 1074 (stating shifting burden for defendant). In June 2021, Burch seriously
criticized Mayor England’s performance in numerous respects. (Dkt. 19-4 at pp. 7-8) (setting forth
Burch’s “specific comments”). Furthermore, Burch did so in a manner suggesting he had also been
soliciting criticism of Mayor England from the City’s staff. (See id. at p. 9) (identifying criticisms
from “general staff”). Mayor England testified he considered Burch’s June 1, 2021 memo
criticizing him to be a form of insubordination and “cause for [Burch’s] removal.” (Dkt. 19-3,
Ex. B at 78:25-79:9). Gummersall also testified Mayor England had lost trust in Burch based on
how Burch handled the city administrator proposal. (Dkt. 20-7 at 10:4-24, 11:8-18). Further, Burch
acknowledges his conduct had caused a rumor he was “trying to form a coup and take over the
leadership of the city.” (Dkt. 19-3, Ex. A at 190:2-13; Dkt. 20-13 at ¶ 17). Based on this evidence,
the Court concludes Mayor England has met his burden of showing a nonpretextual reason
justifying his actions against Burch.
In sum, the Court concludes Burch’s communications regarding the city administrator
proposal are not protected speech under the First Amendment. Although Burch’s yard sign (and
his general support for Heiner) is protected speech, no reasonable juror could find that speech
caused Mayor England’s alleged adverse actions, which were justified based on Burch’s serious

MEMORANDUM DECISION AND ORDER - 18

criticisms of Mayor England. Accordingly, the Court grants summary judgment on Burch’s First
Amendment retaliation claim in Defendants’ favor.
B.

Claim for Violation of the Idaho Protection of Public Employees Act

Burch also alleges Defendants violated the IPPEA, also known as the Whistleblower Act.
See Eller v. Idaho State Police, 443 P.3d 161, 167 (Idaho 2019) (referring to IPPEA as
“Whistleblower Act”). IPPEA’s purpose is to “protect the integrity of government by providing a
legal cause of action for public employees who experience adverse action from their employer as
a result of reporting waste and violations of a law, rule or regulation.” Id. at 62-63 (quoting Idaho
Code § 6-2101). To establish a prima facie claim under the IPPEA, a plaintiff must show: “(1) he
was an employee who engaged or intended to engage in protected activity; (2) his employer took
adverse action against him; and (3) the existence of a causal connection between the protected
activity and the employer’s adverse action.” Van v. Portneuf Med. Cntr., 330 P.3d 1054, 1059
(Idaho 2014) (internal citation and quotation omitted). If a plaintiff establishes the prima facie
elements of an IPPEA claim, the burden shifts to the employer to produce evidence it discharged
or took another adverse action against the plaintiff for a legitimate, nonretaliatory reason. Cryer v.
Idaho Dep’t of Labor, 332 F. Supp. 3d 1260, 1271 (D. Idaho 2018) (citation omitted) (applying
McDonnell Douglas burden-shifting analysis to retaliation claims under the IPPEA). “If the
employer meets this burden, the burden then shifts back to the plaintiff to prove that the legitimate
non-discriminatory reason the employer proffered is, in fact, a pretext.” Id. (citation omitted).
Here, Burch argues his advocacy for a city administrator position was a protected activity
under IPPEA because that advocacy involved communications about the City’s waste of public
funds and manpower. Because of these communications, Burch contends Mayor England took
adverse action against him including: (1) asking him to resign, (2) requesting the City Council

MEMORANDUM DECISION AND ORDER - 19

remove him as Public Works Director, (3) limiting and reassigning several of his job duties, and
(4) constructively terminating him. Burch’s IPPEA claim fails for two, alternative reasons. First,
the claim is untimely because Burch did not file it within the statute of limitations. Second, Burch
failed to establish he engaged in a protected activity under the Act.
1. Statute of Limitations
An employee who alleges an IPPEA violation must commence an action within “one
hundred eighty (180) days after the occurrence of the alleged violation.” Idaho Code § 6-2105(2).
An IPPEA violation occurs when an employer takes an “adverse action” against an employee for
IPPEA protected conduct. See Idaho Code § 6-2104. A lawsuit is commenced in federal court
when the complaint is filed. See Fed. R. Civ. P. 3. Burch filed his complaint in this case on
August 23, 2022. Accordingly, IPPEA’s statute of limitations bars a challenge to any adverse
action Defendants took against Burch before February 24, 2022—i.e., 180 days before Burch filed
this action.
No evidence in the record supports the conclusion that Defendants took any adverse action
against Burch after February 23, 2022. Although Mayor England asked Burch to resign and
attempted to have the City Council discharge him, those actions occurred in November 2021,
which is outside the 180-day statute of limitations. Further, although Mayor England limited and
reassigned some of Burch’s work duties beginning in 2021, no evidence supports these actions
occurred at any time after February 23, 2022. Finally, although Burch resigned in April 2022, he
has failed to establish (or even allege) that he resigned because his working conditions had become
intolerable, and as a result, his resignation was not a constructive discharge, as discussed above.
Accordingly, Burch’s resignation was not an adverse action occurring within 180 days before he
commenced this action. Because Burch did not commence this lawsuit within 180 days of any of
the alleged adverse actions, Burch’s claim is untimely.
MEMORANDUM DECISION AND ORDER - 20

2. Protected Activity
Moreover, the Court questions whether Burch’s efforts to create a city administrator
position constituted “waste” within the meaning of the IPPEA. The IPPEA protects an employee
who “communicates in good faith the existence of any waste of public funds, property or
manpower, or a violation or suspected violation of a law, rule or regulation . . . .” Idaho Code § 62104(1)(a); see also Cryer, 332 F. Supp. 3d at 1271-72 (citing Idaho Code §§ 6-2104(1), 62104(3)). The IPPEA does not expressly define “waste” for purposes of the statute. Case law
addressing § 6-2104, however, suggests the phrase “waste of public funds, property or manpower”
refers to the misuse or misallocation of government assets. See Cryer, 332 F. Supp. 3d at 1275
(finding “hiring unqualified candidates, needlessly duplicating or creating new positions,
improperly awarding bonuses, and making hiring and firing decisions based on personal
relationships could each constitute waste of public funds and manpower”); Curlee v. Kootenai
Cnty. Fire & Rescue, 224 P.3d 458, 460 (Idaho 2008) (concluding employee who was discharged
for documenting coworker’s waste stated prima facie case under IPPEA).
Here, Burch argues he engaged in a protected activity under the IPPEA when he
communicated his concerns underlying his advocacy for the city administrator position. Burch
describes those concerns as Mayor England’s mismanagement of the Strategic Plan, Mayor
England’s approach to budgeting, and the decision to offer a discount under the City’s credit
program. (Dkt. 20-13 at ¶¶ 13-15). While these concerns involve how the City and Mayor England
managed government assets—and may even have merit—they do not reasonably allege
Defendants misused public assets in an illegal, unethical, or inappropriate manner. Rather, Burch’s
concerns are more aptly described as a policy disagreement rather than a waste of public funds,
property, or manpower.

MEMORANDUM DECISION AND ORDER - 21

For this reason, the Court disagrees Burch’s concerns about Mayor England’s alleged poor
performance or the City’s purported inefficiencies constitute communications about “waste” under
§ 6-2104. To conclude otherwise would transform any policy disagreement regarding the proper
use of public assets between an elected official and an employee who communicates their
disagreement into a protected activity under the IPPEA. Because Burch’s concerns do not directly
relate to waste but rather to a policy and professional disagreement, the Court concludes Burch has
failed to establish his communications identified the existence of “any waste of public funds,
property or manpower” and were, thus, not protected under the IPPEA. Accordingly, the Court
grants Defendants’ summary judgment motion on Burch’s IPPEA claim.
IV. ORDER
IT IS ORDERED that:
1.

Defendants’ Motion for Summary Judgment (Dkt. 19) is GRANTED.

2.

Defendants’ Motion to Strike (Dkt. 21) is DENIED as moot.

3.

The Court will enter judgment in favor of Defendants in a separate document. See

Fed. R. Civ. P. 58.

May 10, 2024

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