United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye U.S. District Court Judge
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.
reasons set forth below, the Court GRANTS in PART and DENIES
in PART the County's Motion for Summary Judgment.
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.
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
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
[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.
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.
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
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.
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
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.
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.
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).
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.
Age Discrimination Claims