United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge.
Court has before it Defendants' Motion for Summary
Judgment (Dkt. 46). The Court heard oral argument on the
motion on November 20, 2017, and now issues the following
John Walker has worked for the Pocatello Police Department
(“PPD”) for approximately 21 years. Several years
ago, PPD asked Walker to investigate Defendant Scott Marchand
and other members of the current administration of the PPD
for accessing adult content on their work computers. Marchand
was later promoted to Chief of Police by Mayor Brian Blad.
According to Walker, Blad promised Walker he would be
promoted to Captain if he tested in the top three for the
position. However, Walker was ineligible for the position
when it first came open in 2013 because of an unacceptable
performance rating he received from Marchand. Walker claims
he received the unacceptable performance rating in
retaliation for disclosing concerns about Marchand's
early 2014, Walker applied for the Director of Campus
Security position at Idaho State University
(“ISU”). Walker claims that despite being on the
list of finalists, he was abruptly removed after Marchand,
Captain Roger Schei, or Blad made false statements to ISU
that he was leaking information to the newspaper about a
conflict between PPD and ISU, and that Walker was a
“rogue” employee. Marchand later ordered secret
video surveillance of Walker while he was on FMLA leave. The
PPD then drafted a memo for Walker's personnel file
outlining all the work he did not accomplish while on FMLA
leave. Walker also failed to receive a promotion just over a
month after he returned to work, and again six months later,
despite being the top candidate.
ultimately filed a Second Amended Complaint, alleging a
§ 1983 claim for violation of due process (Count I), a
§ 1983 claim for violation of free speech (Count II), an
intentional interference with prospective economic advantage
claim (Count III), a defamation claim (Count IV), an
intentional infliction of emotional distress claim (Count V),
a negligent infliction of emotional distress claim (Count
VI), an FMLA interference claim (Count VII), an FMLA
retaliation claim (Count VIII), a § 1983 claim for
Fourth Amendment violation of right to privacy claim (Count
IX), and a Rehabilitation Act claim (Count X). Earlier, the
Court granted Defendants' motion to dismiss Counts III-VI
as to defendants Marchand and Schei. Defendants now ask for
summary judgment on all remaining claims.
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.
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
unreasonable inferences from circumstantial evidence.
McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir.
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).
shifts the burden to the non-moving party to produce evidence
sufficient to support a jury verdict in her favor.
Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ]
affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine
dispute of material fact exists. Celotex, 477 U.S.
Statute of Limitations
ask the Court to dismiss Walker's free speech claim, and
to disregard portions of the record based on the statute of
limitations. For § 1983 claims, federal courts apply the
forum state's personal injury statute of limitations and
federal law for determining accrual. Knox v. Davis,
260 F.3d 1009, 1012-13 (9th Cir.2001). Idaho's two-year
statute of limitations applies here. See Idaho Code Ann.
§ 5-219(4) (two-year statute of limitations for personal
filed his Complaint on October 21, 2015. Defendants ask the
Court to dismiss Count II because the alleged speech occurred
on July 13, 2013, more than two years before the filing of
the Complaint. Defendants also ask the Court not to consider
any facts which occurred prior to October 21, 2013 because
each fact is a discrete act which allegedly violated
Walker's constitutional rights.
§ 1983 claim accrues when the plaintiff knows or has
reason to know of the injury that forms the basis of the
action. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th
Cir. 1999). There is no evidence that Walker knew or
had reason to know of his alleged injury on the day his
speech occurred. Instead, Walker received a due process
hearing and potential termination notice on October 9, 2013.
Dkt. 46-10. The notice stated that Walker's due process
hearing was scheduled for October 22, 2013, and that
disciplinary action up to and including termination was
“being considered.” Id. On October 29,
2013, Walker received the results of the due process hearing,
which was a written reprimand. Dk.t 46-11. Under these
circumstances, the earliest Walker knew or had reason to know
of the injury forming the basis of his action was when he
received the written reprimand on October 29, 2013. And even
if one could argue he received some sort of notice at the
hearing, that occurred on October 22, 2013. All of these
actions occurred within the two-year statute of limitations
before the Complaint was filed on October 21, 2015.
Accordingly, the Court will not bar the free speech claim
pursuant to the statute of limitations. For the same reasons,
the Court will deny Defendants' request that the Court
not consider actions taken before October 21, 2013 as they
apply to the other § 1983 claims.
Due Process Claim (Count I)
crux of Walker's due process claim is that Marchand was
not an impartial decisionmaker. However, before addressing
that issue in detail, the Court must address whether Walker
had a property interest which could give rise to a due
threshold requirement to Walker's due process claim is
his showing of a property interest protected by the
Constitution. Wedges/Ledges of Cal., Inc. v. City of
Phoenix, 24 F.3d 56, 62 (9th Cir.1994). “Although
one's actual job as a tenured civil servant is property,
see, e.g., Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 538- 39 (1985), the prospect of a promotion is
not in the same category.” Nunez v. City of Los
Angeles, 147 F.3d 867, 871 (9th Cir. 1998). “To
have a property interest, a person clearly must have more
than an abstract need or desire.” Id. (citing
Board of Regents of State Colleges v. Roth, 408 U.S.
564, 577 (1972)) (Internal quotes omitted). “A mere
unilateral expectation of a benefit or privilege is
insufficient; the plaintiff must have a legitimate claim of
entitlement to it.” Id. (Internal quotes
in Nunez, the Ninth Circuit explained that although
a police officer's mere anticipation or expectation of
promotion is not enough to create a property interest in the
promotion, such expectation could rise to the level of a
property interest if the expectation of promotion is firm and
definite. Id. Specifically, the Ninth Circuit
suggested that a binding assurance of a forthcoming promotion
can create a property interest in the promotion. Id.
at 873. The “commitment need not be formally expressed
in a statute or a written contract; it can be implied from
words or conduct.” Id. at 873, n.7, (citing
Perry v. Sindermann, 408 U.S. 593, 601-02 (1972)).
And there “must be rules or mutually clear
understandings securing the commitment.” Id.
there is a genuine issue of disputed fact as to whether
Walker had a binding assurance of a forthcoming promotion.
There is evidence that (1) Mayor Blad promised Walker the
promotion if he tested high enough to qualify for the
promotion, and (2) this condition was met because
Walker's test scores qualified him for promotion. See
Walker Depo. 1, p. 98-103, Dkt. 52-3; Walker
Decl., ¶ 13, Exs. G & H, Dkts. 52-14, 20 &
21). Thus, construing the evidence in a light most favorable
to Walker, there is a genuine issue of material fact as to
whether Walker had a property interest in the promotion.
due process claim focuses on his allegation that his right to
an impartial decisionmaker at his disciplinary hearing was
violated. As an initial matter, the Court notes that there is
a dispute whether Walker sufficiently pled the claim as an
“impartial decisionmaker” claim. There is no
question that Walker's Second Amended Complaint does not
specifically allege that he was not provided with an
impartial decisionmaker - the Second Amended Complaint does
not even mention the words “impartial
decisionmaker.” But a complaint need not use specific
words. A civil complaint must simply provide “a short
and plain statement of the claim showing that the pleader is
entitled to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient
to “give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47
the right to an impartial decisionmaker is a fundamental
guarantee of due process that is “jealously
guarded.” Clements v. Airport Authority of Washoe
County, 69 F.3d 321, 333 (1995). To be constitutionally
sound, the government must guarantee a complainant a
meaningful opportunity to respond to the evidence and to make
an argument against a proposed deprivation. Vanelli v.
Reynolds School Dist. No. 7, 667 F.2d 773, 780 (9th
Cir.1982). Under these circumstances, the Court finds that
Defendants were on notice that Walker would assert an
impartial decisionmaker argument. This is especially true
given the discovery in this case, which included assertions
that Marchand had a bias against Walker.
to the merits of the impartial decisionmaker claim,
“[i]t is well-settled that the Due Process Clause
requires . . . ‘a fair trial in a fair
tribunal.'” Stivers v. Pierce, 71 F.3d
732, 741 (9th Cir. 1995) (quoting In re Murchison,
349 U.S. 133, 136 (1955)). Typically, an employee subject to
termination is afforded a pre-termination hearing and a
post-termination hearing. There is no specific right to an
impartial decisionmaker at the more informal pre-termination
hearing so long as the complainant receives his full due
process rights at the more formal post-termination hearing.
Walker v. City of Berkeley, 951 F.2d 182, 184 (9th
Cir. 1991). But as this Court has indicated, “where a
meaningful review before an impartial decisionmaker is not
necessarily afforded at the post- termination stage, the
burden is on the government to conduct the pre-termination
hearing in a manner that affords the grievant all the process
that he is due.” Sadid v. Vailas, 936
F.Supp.2d 1207, 1229 (D.Idaho 2013). As noted above,
“[t]o be constitutionally sound, the government must
guarantee a complainant a meaningful opportunity to respond
to the evidence and to make an argument against a proposed
deprivation.” Id. (citing Vanelli v.
Reynolds School Dist. No. 7, 667 F.2d 773, 780 (9th
Cir.1982) (“An individual must have ...