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Harter v. Bonner County

United States District Court, D. Idaho

October 2, 2018

BONNER COUNTY, IDAHO, a political subdivision of the State of Idaho, Defendant.


          David C. Nye U.S. District Court Judge

         I. OVERVIEW

         This matter comes before the Court on Defendant Bonner County's ("the County") Motion for Summary Judgment. Dkt. 29. Plaintiff Roland Harter ("Harter") claims the County unlawfully demoted him because of his age, and later fired him in retaliation for filing a discrimination claim with the Idaho Human Rights Commission. He also alleges violations of state contract law, and denial of his due process rights under 42 U.S.C. §1983. The Court heard oral argument on this motion on August 21, 2018.

         For the reasons set forth below, the Court GRANTS in PART and DENIES in PART the County's Motion for Summary Judgment.

         II. FACTS

         The County hired Harter in 1998 to work as an equipment operator in their Solid Waste Department. He was 49 years old at the time. The County quickly promoted Harter, and he ultimately supervised operations at its solid waste sites, which included supervisory responsibility over approximately 18 employees. Throughout Harter's employment, his supervisors periodically completed Performance Evaluations regarding his work. As early as 2001, one such evaluation noted that Harter "lets his personal likes and dislikes influence the way he deals with employees," and alleged that he showed preferential treatment to employees that he felt were easier to manage. Dkt. 29-33, at 3.

         Between 2005 and 2015, Leslie Marshall served as Director of the County's Solid Waste Department, and as Harter's immediate supervisor. Their relationship was initially positive, as were her initial Performance Evaluations of Harter's work. However, their relationship began to deteriorate in 2012 after Marshall hired Lacey Blackford-a man approximately 30 years younger than Harter-to work alongside him.

         Harter and Blackford immediately "butted heads." Dkt. 37-1, at 2-3. Marshall met with Harter on multiple occasions to discuss his growing tension with Blackford. Marshall's 2014 Performance Evaluation of Harter stated that he needed to improve the way he talked about other employees, and noted it is "unprofessional for [Harter] to continually bad mouth [his] supervisor to other employees." Dkt. 29-11, at 7; Dkt. 29-33, at 3. Harter responded to this evaluation, claiming Marshall's comments stemmed from hearsay rather than personal observations. Dkt. 11, at 7.

         Harter proceeded to file a formal grievance with the County's Board of Commissioners regarding Blackford and Marshall. He claimed Blackford regularly attempted to antagonize him, and Marshall allowed Blackford's behavior to continue, while "becoming hostile towards [Harter] and dismissing [his] complaints as 'pissy.'" Dkt. 29-17. Harter was also frustrated because, following Blackford's hire, his opportunities to work overtime were "cut to zero." Dkt. 29-17, at 2; Dkt. 29-18, at 7-8, 27-28. Marshall responded with a letter stating Harter had "a history of letting [his] personal feelings towards an employee cloud [his] ability to professionally perform [his] job." Dkt. 29-33, at 3. She further claimed that Blackford was a good employee, and that Harter's complaints were not supported by documented evidence. Dkt. 29-18, at 6-9.

         On February 20, 2014, the Board of County Commissioners held a meeting to discuss Harter's grievance. Both Harter and Marshall were present. Harter elaborated on his grievance letter and alleged that the County hired Blackford "because of [Harter's] age" and because Marshall intended for Blackford to eventually replace Harter. Dkt. 29-18, at 31. Marshall admitted to telling Harter that she "brought someone on to learn his job . . . because there could be a time when [Harter] will need to be replaced and [she] need[ed] to have someone understand [Harter's responsibilities]." Id. at 32. She clarified that in making these comments, it was not in reference to Harter potentially being fired, but merely a reference to Harter eventually retiring.

         On February 20, 2014, the County Commissioners sent Harter notice of its decision regarding his grievance. The Commissioners disagreed with Marshall that Harter's claims were frivolous. However, while they found his complaints to be serious, they also found them to be "unsubstantiated and therefore unprovable." Dkt. 29-19. As such, the County took no further action.

         Marshall retired from her position in April of 2015. She provided the County with notice several months prior to her departure, during which time the County advertised the upcoming vacancy. Harter claims the County never provided him with personal notice regarding an opportunity to apply for the position. Harter did, however, have notice of Marshall's impending retirement because she sent a personal email informing her coworkers of her decision. Dkt. 29-11, at 20. Harter did not apply for the position because he assumed the County had already selected a man named Bob Howard to serve as Marshall's replacement. Specifically, Harter explained:

I wasn't sure that [Marshall's position] was going to be available to somebody other than Bob Howard, because Bob Howard had spent a certain amount of time with [Marshall], and I just. . . assumed that. . . [the County] had been sort of preparing him for that position. But it turns out, he was not. They advertised the job and didn't let anybody know, or at least they didn't let me know that there was an opportunity for me to apply for it.


         Harter never discussed whether he could apply for the position with Marshall, the County's Human Resources office, or Bob Howard. Id. Ultimately, the County hired Matt Klmgler to fill Marshall's role. At the time of this hiring, Klmger was fifty-one years old, and Harter was sixty-six.

         Shortly after taking over as Director, Klmgler split the County's Solid Waste Department into two divisions, referred to as "Eastside" and "Westside." Klmger assigned a man named Kevin Reynolds, who was fifty-three years old at the time, to oversee operations on the Eastside, and Harter was assigned to oversee operations on the Westside. Klmgler claims that this decision was made for "purely managerial purposes." Dkt. 29-21. Harter claims the split was an age-based demotion, as Reynolds was younger than him, and Harter-who previously supervised all the County's Solid Waste sites-now only supervised half. He raised these concerns with Cindy Bmkered, the County's Human Resources Director, and requested a hearing. Bmkered informed Harter that, pursuant to the County's Policy and Procedure Manual, Harter was not entitled to a hearing because he was not actually demoted, nor was his salary reduced.

         Within his first two months as Director, Klmgler received complaints about Harter from three separate employees. One such complaint claimed Harter "has a history of trying to intimidate people who he decides he does not want working under him any longer. In the past I have seen and heard about him mentaly [sic] bulling [sic] and intimidating [various co-workers]." Dkt. 29-23. The complaint further alleged that Harter made demands that "were unsafe, but he INSISTED that we follow his orders or he would find someone that would. He threatened to move us to different sites, etc." Id. (emphasis in original). Another complaint accused Harter of yelling at employees. Klmgler reported these complaints to Bmkered, who requested that Bill Wilson, an attorney in the County's Prosecutor's Office, investigate the allegations and report his findings to the County Commissioners.

         Wilson's investigation began on June 8, 2015. He interviewed five individuals prior to interviewing Harter. These interviews revealed multiple allegations of Harter using scheduling as a weapon against his subordinates, screaming, and retaliating against co-workers that upset him. Dkt. 29-12, at 1-5. One interviewee claimed she ultimately resigned because Harter's treatment of her "became unbearable." Id. at 2-3. She explained that she was afraid of Harter and dreaded going to work with him. Id.

         On June 24, 2015, Wilson interviewed Harter to give him an opportunity to respond to the allegations. When asked about a specific allegation of yelling at Kevin Reynolds, Harter responded that "what [Reynolds] is referring to as 'screaming' started with him because he went off about how I was accusing him of things ... the decibels went up a little bit, but there was no screaming and there was no hostility as far as I am concerned." Dkt. 39-1, at 7, 9.

         Harter admitted to using profanity during an argument with Blackford, explaining that "guys at work, that's how they talk a lot of times." Dkt. 39-1, at 4. However, he denied using scheduling as a weapon against his co-workers, or ever bullying them. Finally, Wilson asked Harter to suggest individuals that he could "speak to on [Harter's] behalf." Dkt. 39-1, at 4. Harter responded "I'll just blanket everybody. Everybody that has worked for me right now. . . . I'm not going to eliminate anybody." Id. at 5. Wilson explained that he did not want to interview everybody that had ever worked for Harter.

         Specifically, he stated:

[J]ust selfishly, I don't want to interview a dozen people. I would rather limit it to a couple because I have not interviewed that many people challenging you either . . in fairness, if there are people who are going to be accusing you of things, I want you to have the opportunity to say 'no, this person is m the same position and they think I am doing a good job.' So a couple ... of those people.

Dkt. 39-1, at 6. Harter then suggested four individuals Wilson could interview. Wilson, however, only interviewed one of them. See Dkt. 29-12, at 2-5; Dkt. 39-1, at 6.

         At the end of his investigation, Wilson provided a summary and recommendation to the County. While Wilson did not consider every allegation made against Harter to be credible, he found many of the allegations-made by different employees and arising from various interactions spanning over a decade-to be credible and "remarkably similar." Dkt. 29-12, at 6. He recommended placing Harter on a one-year probation.

         Bmkerd and Klmgler discussed the results of the investigation with the County Commissioners. Finding the results to be credible, the County demoted Harter to the role of Solid Waste Technician, without a reduction in pay, on July 21, 2015. The County also placed Harter on a one-year probation. The County claims that, pursuant to this probation, Harter's employment status was changed from "for-cause" to "at-will." Harter claims that he was never made aware of this change and argues that he remained a for-cause employee.

         Following this demotion, Harter sought to appeal the decision. After sending Bmkerd multiple emails seeking information regarding the proper procedures for initiating an appeal, she responded with a letter that said:

Consistent with the policy guidelines, because there was no change to your pay, you were kept whole in regard to benefits, there are no appeal rights. The opportunity to be heard and name clearing relates to those employees who are independent contractors, seasonal, temporary or probationary. None of which you are. Therefore, your request for an appeal hearing is denied on that basis

Dkt. 29-29, at 1.

         Harter then filed a complaint with the Idaho Human Rights Commission ("IHRC"). Specifically, he alleged that the County discriminated against him based on his age when it reassigned half of his supervisory responsibilities to a younger employee (Kevin Reynolds), and again when it demoted him and placed him on probation following Wilson's investigation. Additionally, Harter alleged that in 2014 the County engaged in age-based discrimination when it hired Kevin Reynolds to be the "alternative emergency response manager" without giving Harter an opportunity to apply for the position.

         On July 14, 2016, while Harter's IHRC complaint was still pending, he received a notice of termination from the County. The notice did not specifically explain why the County was terminating him. It simply stated that the County was "unsatisfied with [his] performance." Dkt. 29-14, at 1. The notice also included information regarding the proper procedure for requesting a post-termination hearing if Harter believed his termination was the product of unlawful discrimination. Id. at 1-3. It informed Harter that failure to seek a review hearing would constitute a failure to exhaust his remedies. Id. at 3. Harter ultimately did not seek a post-termination hearing.

         The IHRC issued its determination on August 26, 2016, finding Harter could not prevail on his age discrimination claims. However, the IHRC did not consider Harter's termination in reaching this conclusion and made no reference to it. Presumably, its determination was confined solely to allegations made in Harter's complaint filed prior to his termination. On December 21, 2016, Harter filed the lawsuit now before the Court.


         Summary judgment is proper "if the movant shows that 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). This Court's role at summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). In considering a motion for summary judgment, this Court must "view[] the facts in the non-moving party's favor." Id. To defeat a motion for summary judgment, the respondent need only present evidence upon which "a reasonable juror drawing all inferences in favor of the respondent could return a verdict in [his or her] favor." Id. (citation omitted). Accordingly, this Court must enter summary judgment if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The respondent cannot simply rely on an unsworn affidavit or the pleadings to defeat a motion for summary judgment; rather the respondent must set forth the "specific facts," supported by evidence, with "reasonable particularity" that precludes summary judgment. Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001).

         IV. ANALYSIS

         Harter's amended complaint includes the following causes of action: (1) age discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act ("ADEA"); (2) retaliatory discharge in violation of Title VII and the ADEA; (3) state law breach of contract and the covenant of good faith and fair dealing; and (4) denial of procedural due process in violation of the Fifth and Fourteenth Amendments of the United States Constitution. The County has moved for summary judgment on all claims.

         A. Age Discrimination Claims

          1. ...

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