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Miller v. Lemhi County

United States District Court, D. Idaho

March 30, 2017

NOVA MILLER, Plaintiff,
LEMHI COUNTY, a political subdivision of the State of Idaho; JOHN JAKOVAC, in his official and individual capacity; RICHARD SNYDER, in his official and individual capacity; and ROBERT COPE, in his official and individual capacity, Defendants.


          Honorable Candy W. Dale United States Magistrate Judge.


         Pending before the Court are Plaintiff's Motion to Strike Criminal Records and Related Information (Dkt. 18) and Motion to Strike Inadmissible Documents and Statements (Dkt. 22), both filed in response to materials submitted by Defendants in support of their Motion for Summary Judgment (Dkt. 15). In the interest of avoiding delay, and because the Court finds the decisional process would not be significantly aided by oral argument, the motion will be decided on the record and without oral argument. Dist. Idaho L. Rule 7.1(d). Preliminarily, however, the undersigned notes that the Motion for Summary Judgment is pending for resolution by the presiding District Judge, who retains the discretion to modify the rulings contained in this decision should he conclude the undersigned committed error. 28 U.S.C. § 636(b)(1)(A).


         On May 7, 2015, Plaintiff Nova Miller filed her Complaint against Defendants Lemhi County and the Lemhi County Commissioners John Jakovac, Richard Snyder, and Robert Cope, [1] asserting claims for hostile work environment, gender discrimination, retaliation, and violation of procedural due process under state and federal law. (Dkt. 1.) Miller started working for Lemhi County as a scale operator at the Lemhi County landfill in 2004, and received a promotion to scale house supervisor in 2009. Miller alleges that, throughout her employment, she was subjected to harassment and discrimination by her coworkers.[2] Id. The County terminated Miller from her employment on December 17, 2013.

         In October of 2013, a landfill employee reported to the Lemhi County Treasurer that he suspected Jack Miller, the landfill manager and Miller's husband since 2011, was involved in the theft of county property. (Dkt. 15-2 at 2.) Specifically, the employee reported that Jack Miller allegedly placed tires purchased by the county onto Miller's vehicle. Id. The Lemhi County Sheriff's Office started investigating the alleged theft. Id. On October 31, 2013, Jack Miller admitted in writing that he purchased tires with county funds and retained cash received from recycling materials for personal use. Id.

         On November 1, 2013, multiple undisputed events occurred: (1) the County issued Jack Miller a Notice of Proposed Termination and Suspension without Pay (Dkt. 15-7 at 144 - 49); (2) Commissioner Jakovac notified Miller that the County was suspending her from her employment, with pay, pending an investigation into her involvement with her husband's theft (Dkt. 15-2 at 3); (3) during this meeting with Jakovac, Miller reported her complaints of employment discrimination to him;[3] and (4) the County issued Miller a Notice of Suspension with Pay Pending Investigation based on “the theft of Lemhi County property admitted to by your husband, Jack Miller” (Dkt. 15-8 at 8 - 11).

         On November 6, 2013, the County issued Jack Miller a Notice of Decision Regarding Personnel Action: Termination of Employment, based on his admission “to having committed theft of money and property belonging to Lemhi County, ” and the corroboration of the confession provided by the County Sheriff's Office.[4] Decl. Morton (Dkt. 15-7 at 150 - 51).

         The next day, Miller relinquished her keys to the County Clerk on November 7, 2013, and discussed her discrimination complaints while there; the Clerk followed up by sending Miller a copy of the County's complaint procedure. Id. at 79 - 81.

         During the November of 2013 investigation into Miller's suspected involvement with Jack Miller's theft of county property, the County also initiated an investigation into Miller for alleged falsification of time cards and abusive conduct toward her fellow employees. (Dkt. 15-1.) In her Complaint, Miller alleges the supplemental investigation occurred as a result of statements and complaints made by the same coworkers Miller alleges discriminated against her.[5] Id. It is not indicated by the record, whether the County investigated Miller's discrimination claims. (Dkt. 20-7 at 3 - 4.)

         On December 4, 2013, the County issued Miller a Notice of Proposed Personnel Action - Termination and Notice of Suspension without Pay Pending Decision, based on the County's determination that Miller: (1) engaged in abusive conduct toward fellow employees; (2) falsified time cards by claiming to work on days she was absent; and (3) engaged in criminal conduct because it is “apparent that you knew that tires for your vehicle were obtained using County funds.” Decl. Morton (Dkt. 15-8 at 12 - 16).

         On December 9, 2013, Miller's counsel sent the County a letter detailing, among other concerns, that: (1) Miller's employment position was already posted as a vacancy; (2) interviews were being held, (3) it appeared the County had already made a determination about Miller's employment status; (4) Miller was the victim of discrimination; and (5) reinstatement of Miller to her position and back pay were appropriate. Id. at 1 - 5. On December 17, 2013, following Miller's pre-termination hearing, the County voted to terminate her employment, effective 3:45 p.m. Decl. Counsel (Dkt. 15-4 at 35). On December 19, 2013, the County issued Miller a Notice of Decision Regarding Personnel Action: Termination of Employment for the following reasons: (1) “engaging in abusive conduct to fellow employees;” and (2) “participating in a scheme or deception designed to create incorrect personnel records by falsifying time sheets by claiming to have worked on days when you were absent from work.” Decl. Morton (Dkt. 15-8 at 17 - 22). The County did not terminate Miller's employment for any alleged criminal conduct in connection with Jack Miller. Id.

         On April 17, 2014, Jack Miller was arraigned in state district court in Lemhi County on criminal theft charges. On August 21, 2014, the State of Idaho and Jack Miller entered into a Plea Agreement, and on November 20, 2014, the state court entered an Order Withholding Judgment and Order of Probation. Id. at 25 - 35.


         On summary judgment, to support a claim or defense, the party asserting that a fact cannot be established or is genuinely disputed must cite to particular materials in the record, including depositions, documents, affidavits or declarations, admissions, interrogatory answers, or other materials. Fed.R.Civ.P. 56(c)(1)(A). Alternatively, the adverse party can demonstrate that the other party cannot produce admissible evidence to support a fact. Fed.R.Civ.P. 56(c)(1)(B). An opposing party may object also that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

         With regard to motions to strike as a means of objecting to evidence submitted in support of or against a motion for summary judgment, the Advisory Committee Notes to the 2010 amendments to Rule 56 of the Federal Rules of Civil Procedure provide that a Rule 56(c)(2) objection “functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike.” Fed.R.Civ.P. 56 advisory committee's note (2010 Amendments). Motions to strike are limited to pleadings, which are defined by Federal Rule 7(a) as “exhibits filed in support of, or in opposition to, a motion for summary judgment are not pleadings.” Shelton v. Reinke, No., 2013 WL 1319630, at *11 (D. Idaho Mar. 28, 2013), aff'd, 585 F.App'x 359 (9th Cir. 2014). Accordingly, the motions to strike filed by Miller will be construed as objections to the Court's consideration of certain materials submitted by Defendants in support of their motion for summary judgment.


         I. Plaintiff's Motion to Strike Criminal Records and Related Information (Dkt. 18)

         Miller filed two motions to strike. The first motion seeks to strike the records of criminal proceedings against Jack Miller and the Notices of Decision Regarding Personnel Action issued to Jack Miller. Further, Miller seeks to strike the related references to these documents in the memorandum the County filed in support of their motion for summary judgment (Dkt. 15-1) and in their Statement of Undisputed Material Facts (Dkt. 15-2).

         “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401.

         A. Jack Miller's Criminal Records

         Miller moves to strike Jack Miller's Plea Agreement (Dkt. 15-8 at 32 - 35) and Order Withholding Judgment and Order of Probation (Dkt. 15-8 at 25 - 31) on the following grounds: (1) relevancy; (2) impermissible character evidence; (3) impermissible and premature impeachment evidence; and (4) danger of unfair prejudice to Miller. The Court discusses each in turn.

         1. Relevancy-Fed. R. Evid. 401

         Miller argues that Jack Miller's criminal records are not relevant to her claims in this case and have been incorporated into the record by the County in an effort to establish guilt by association with her husband. Further, she argues that the County has made no argument connecting Jack Miller's criminal records to her employment discrimination claims in this lawsuit. The County argues that proof Jack Miller pleaded guilty to criminal charges stemming from the alleged theft of county property demonstrates that the County's investigation into Miller was justified, and thus, is relevant to its defense. Further, the County contends the criminal records provide context and background regarding the reasons for the initial suspension and investigation into Miller, and proves her termination was not the product of unlawful retaliation.

         The relevancy of the relationship between the evidence and the claims and defenses of the parties is determined on a case-by-case basis:

Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case. Does the item of evidence tend to prove the matter sought to be proved? Whether the relationship exists depends upon principles evolved by experience or science, applied logically to the situation at hand. James, Relevancy, Probability and the Law, 29 Calif.L.Rev. 689, 696, n. 15 (1941), in Selected Writings on Evidence and Trial 610, 615, n. 15 (Fryer ed. 1957). The rule summarizes this relationship as a “tendency to make the existence” of the fact to be proved “more probable or less probable.

Fed. R. Evid. 401 advisory committee's note.

         The County's argument fails to establish a logical relationship between Jack Miller's criminal records and the County's justification for its initial investigation of Miller in November of 2013, and the termination of her employment. First, the criminal proceedings documented in these records did not begin until some four months after Miller's employment was terminated. Second, the state court accepted Jack Miller's guilty plea per the written plea agreement nine months after the investigation of Miller was initiated. Finally, the state court did not enter its Order Withholding Judgment and Order of Probation until eleven months following the termination of Miller's employment.

         Prior to initiating its investigation into Miller, the County was aware of only the written admission of theft made to the Sheriff's office by Jack Miller. The County's attempt to rely upon what it learned long after Miller's employment was terminated, as justification for its actions during its investigation and termination of her employment, does not make the documents relevant to what the County knew at the time of the investigation of Miller. These records, although appearing authentic, do not tend to prove a fact of consequence-what the County actually knew at the time it began its initial investigation of Miller-which purportedly justified the actions the County took with regard to her employment. Accordingly, under Fed.R.Evid. 401, the criminal records are not relevant to Miller's claim of discrimination and retaliation, or the County's defenses. The objection to the Court considering the same in connection with motion for summary judgment will be sustained.

         2. Character Evidence-Fed. R. Evid. 404(b)[6]

         Miller alternatively argues that Jack Miller's criminal records are inadmissible under Fed.R.Evid. 404(b), “because the County seeks to establish that, because Jack Miller [admitted] to theft while working at the landfill, he similarly assisted Plaintiff with her alleged time card fraud.” (Dkt. 18 at 5.) Miller contends that the County's introduction of Jack Miller's criminal records is an attempt to demonstrate conformity to a specific action, which is prohibited under Fed.R.Evid. Rule 404(b). (Dkt. 18-1 at 2.) Further, Miller argues that “the inclusion of the criminal information is an impermissible circumvention of Rule 404, with the County seeking to impute Jack Miller's criminal actions to Plaintiff, ” and therefore, the criminal records and information should be excluded or stricken from the record. Id.

         The County asserts the evidence was not submitted to prove Jack Miller acted in accordance with a particular character trait on a particular occasion, nor was it submitted to show he assisted with time card fraud or to impugn Miller's honesty and truthfulness through Jack Miller's unrelated actions. (Dkt. 19 at 4 - 5.) Instead, the County argues the evidence was submitted for another purpose-to prove that the County's initial investigation into Miller was justified and there was no unlawful retaliation. Id. at 5. But, the County misses the point-Jack Miller's criminal proceedings occurred long after the County's actions and decisions regarding Miller's employment. This objection will also be sustained and the records will not be considered in connection with the motion for summary judgment.[7]

         3. Impeachment Evidence-Fed. R. Evid. 609[8]

         In addition to her other arguments, Miller raises the argument that, “because Jack Miller has yet to testify in this matter other than in his deposition, evidence of his prior felony under Rule 609 for impeachment is premature.” (Dkt. 18-1 at 2.) She further argues that, because Idaho Rule of Evidence 609(c)[9] prohibits the use of withheld judgments as convictions for purposes of impeachment, the County “should not be allowed to ignore the substantive purpose of a withheld judgment under Idaho law.” Id. at 6. She maintains that, “even if not premature and prohibited by Idaho law[, ] Jack Miller's criminal information cannot be used for impeachment under Rule 609(a)(2) because his crime did not involve dishonesty or false statements as a required element ...

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