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Berrett v. Clark County School District No. 161

Supreme Court of Idaho

December 6, 2019

RONALD RYAN BERRETT AND LANIE BERRETT, husband and wife, Plaintiffs-Appellants,
CLARK COUNTY SCHOOL DISTRICT NO. 161, Defendant-Respondent.

          Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Jefferson County. Bruce Pickett, District Judge.

         The district court's order granting summary judgment is reversed in part and affirmed in part.

          Thomsen Holman Wheiler, PLLC, Idaho Falls, for appellants. Jacob S. Wessel argued.

          Hall Angell & Associates, LLP, Idaho Falls, for respondent. Ryan A. Jacobsen argued.

          BRODY, JUSTICE.

         This case arises from the termination of Ryan and Lanie Berrett ("the Berretts") from their jobs with Clark County School District No. 161 (the "School District"), and raises issues regarding the "law of the case" doctrine, the Idaho Protection of Public Employees Act ("Whistleblower Act"), and wrongful termination in violation of public policy. After their terminations, the Berretts sued the School District, alleging that both of their terminations were in retaliation for Ryan Berrett reporting a building code violation to the School District's board of trustees (the "board"). The district court granted the School District's motion for summary judgment, finding that Ryan Berrett did not engage in a protected activity under the Whistleblower Act, and that Idaho's public policy does not extend to protect Lanie Berrett in a termination in violation of public policy claim. In turn, the district court also denied the Berretts' motion for reconsideration. The Berretts timely appealed.


         A. Ryan Berrett

         The School District hired Ryan Berrett to perform part-time maintenance work on its facilities in late September 2009. About ten months later, the School District hired him to serve as the district's maintenance supervisor. As maintenance supervisor, he maintained the School District's furnace system, which included the propane tank and equipment that supplied propane gas to the furnaces.

         In January 2012, school staff members reported propane odors coming from the school's old gymnasium. Gayle Woods ("Woods"), the School District's business manager, notified the superintendent, David Kerns ("Kerns"), about the odors. Ryan Berrett also received reports of the odors. Kerns, upon learning of the odors, notified the board of the problem and started working with Ryan Berrett to identify and address the source of the odors. The chair of the board, Erin Haight-Mortensen ("Haight-Mortensen"), received regular updates from Kerns regarding the propane odors and attempts to service the problem. Ryan Berrett also provided the board with monthly updates on the problem.

         The parties dispute who first contacted the service providers to identify the source of the propane odors. The School District maintained that Kerns first worked with the board to identify and contact propane service providers. Ryan Berrett, in contrast, asserted that he first reached out to service providers and remained the School District's point of contact throughout the repair efforts. Regardless of who made the first contact, the initial service calls made by both Sermon Service & Electric and High Plains Propane were unsuccessful in identifying the source of the odors.

         Ryan Berrett continued to work with service providers throughout the spring of 2012 in an effort to address the odors. Eventually, service providers identified multiple problems in the propane system. First, the vaporizer that sat next to the main propane tank needed to be replaced. Ryan Berrett solicited a bid from Sermon Service & Electric ("Sermon") to replace the vaporizer in March 2012. Ryan Berrett updated Kerns and Haight-Mortensen about the vaporizer and accompanying bid. The cost of Sermon's repair estimate and Kerns' reaction to the estimate are both disputed. Ryan Berrett alleged that Sermon's bid estimated repair costs to be between $60, 000 and $100, 000. Ryan Berrett alleged Kerns told him to "keep quiet" when he learned of the cost. Kerns disputed this statement, and asserted in an affidavit that he never told Ryan Berrett to "keep quiet." Rather, Kerns stated that he regularly communicated with the board regarding the status and cost estimates of repair work. Instead of just telling him to "keep quiet," Kerns stated that he told Ryan Berrett that the School District could not afford a $60, 000- $100, 000 repair, and that he would continue to solicit more affordable bids. Contrary to Ryan Berrett's affidavit, Kerns, Haight-Mortensen, and Woods all contended that Sermon's initial repair estimate was approximately $6, 000-$7, 000.

         The only evidence of a service quote in the record, a March 12, 2012 quote from Sermon, does not contain a price estimate. Sermon representative Mike Holden ("Holden") prepared the quote, providing a summary of the propane issues facing the School District. In the quote, Holden stated that the School District's original plans called for an "18, 000 gallon propane tank," and that the School District currently used a "5[, 000] or 6[, ]000 gallon" tank. Holden wrote that this under-sized "tank will not produce enough vapor" for the building, "causing many problems with equipment." To make up for the vapor deficiency, the propane system had been "adjusted for maximum pressure to maintain operation," which Holden did not believe would effectively maintain pressure throughout the system. Holden concluded the quote stating that "[a]ll equipment without proper gas pressure is unsafe," and that since July 2011, the existing "tank has not been legal and brought up to code."

         The parties dispute the significance of Holden identifying a code violation in the final line of his quote. Ryan Berrett stated that when he gave Kerns the March 12, 2012 Sermon quote, it was the first time the School District discovered the propane issues constituted a code violation. The School District agreed that the propane problems constituted a code violation, but disputed the notion that the March 12, 2012 quote was the first identification of it. Kerns and Haight-Mortensen stated in affidavits that they were aware the propane leak was a building code violation upon discovery of propane odors in January 2012. However, the record contains two sets of affidavits from Kerns and Haight-Mortensen that differ on this fact. The first set of affidavits filed by Kerns and Haight-Mortensen in federal district court only contain statements that they knew of propane odors in January 2012. Those affidavits are silent on when, and if, they knew the propane problems were code violations. The second set of affidavits that were filed with the state district court in this case appear to add one line, in which Kerns and Haight- Mortensen stated that they were "aware that the leak in the propane system was a building code violation" in January 2012.

         In May 2012, months after identifying the under-sized tank, Sermon identified a second propane issue. Sermon pressure tested the propane system and identified multiple micro leaks in the pipes that were small enough to avoid detection in earlier tests. The School District hired Sermon to perform repairs on the micro leaks. Once underway, Sermon's repair work revealed that none of the joints in the system were holding enough pressure, thus increasing the expected costs of repair. Ryan Berrett and Holden discussed ongoing propane issues with the board at a May 17, 2012 board meeting. Sermon later completed the propane system repairs by August 2012, at a total cost of $36, 056.07.

         Following the May 17, 2012 board meeting, Kerns resigned his position as the School District's superintendent. The parties dispute the reason behind Kerns' departure. According to Kerns, he voluntarily resigned and tendered his resignation to the board in a separate executive session of the May 17, 2012 board meeting. Kerns asserted that he resigned for personal health concerns. Ryan Berrett stated in an affidavit that Sherry Mead, a board member, told him that the School District terminated Kerns because he "ignored safety issues" relating to the propane system. Kerns stayed on as interim superintendent until the School District hired a replacement in July 2012.

         On June 22, 2012, Ryan Berrett published a Facebook post detailing frustrations with Kerns and the School District. The post appears to criticize the School District and includes a derogatory statement regarding Kerns. The post refers to Kerns as "chuckles the pretend superintendent." Several students and parents in the community saw the post. Haight-Mortensen also saw the post and sent a copy to Kerns. Kerns confronted Ryan Berrett about the post and asked him to remove it. The parties dispute the content of this confrontation. Kerns stated that, when he asked Ryan Berrett to remove the post, Berrett called him a "fucking asshole." Conversely, Ryan Berrett asserted that he never "cuss[ed] at Kerns." Ryan Berrett subsequently deleted the post.

         The events that followed the Facebook post are also disputed by the parties. In his affidavit, Kerns stated that he addressed the Facebook post with the rest of the board at its next meeting. Kerns further asserted that the board members determined that Ryan Berrett's Facebook post violated the School District's policy, and given his at-will employment status, termination was appropriate. Ryan Berrett asserted that he was fired by Kerns in retaliation for Kerns losing his own job due to "ignoring code violations and safety issues associated with the propane tank."

         On June 27, 2012, Ryan Berrett received a letter terminating his employment with the School District. Ryan Berrett's termination letter identifies insubordination and verbal abuse to School District personnel through social media as grounds for termination.

         B. Lanie Berrett

         The School District hired Lanie Berrett as a lunchroom cook in July 2006. She was subsequently promoted to lunchroom supervisor in 2009. Like Ryan Berrett, Lanie Berrett was also an "at-will" employee. In June 2010, Lanie Berrett entered into a residential lease agreement with the School District to rent a trailer from her employer. The lease provided a monthly rent of $350, but the School District only charged the Berretts $50 a month, allowing the couple to work off the rest of the rent each month. In the spring of 2012, prior to the Berretts' discharge, the School District discontinued the Berretts' rental discount. Kerns stated that the School District discontinued this working arrangement because auditors informed the School District it may affect Ryan Berrett's disability status.

         In her role as lunchroom supervisor, Lanie Berrett managed kitchen operations, submitted documentation to the state, and controlled the lunchroom budget. Woods, the district business manager, worked with Lanie Berrett on the lunchroom budget and reminded her annually to stay within the budget. The School District allocated $15, 000 to assist in yearly budget overages in the lunchroom. Despite the overage assistance, the School District asserts that Lanie Berrett exceeded her budget from 2010 through 2012. Woods and Haight-Mortensen asserted that Lanie Berrett exceeded her budget and the overage protection by $22, 890 in 2010; $17, 612 in 2011; and $47, 924 in 2012.

         Lanie Berrett disputed this account, stating that she stayed within her budget as lunchroom supervisor. Further, Lanie Berrett asserted that she was never disciplined for any budget problems while she was employed at the School District. In her affidavit, Lanie Berrett stated that one month prior to her termination, she received a positive performance review from Kerns. However, Lanie Berrett later contradicts herself in her deposition, acknowledging that she did overspend the food service budget each year.

         In June 2012, the School District discovered that Lanie Berrett had again exceeded her budget for the 2011-12 school year. The School District determined that Lanie Berrett's repeated inability to conform to her budget requirement warranted termination. On June 27, 2012, Lanie Berrett received a letter terminating her employment with the School District. Lanie Berrett's termination letter identifies consistent budget overspending, failure to perform supervisory duties, and failure to follow her supervisor's direction as grounds for termination. Lanie Berrett stated that her termination "came as a surprise" because of her positive performance evaluations from Kerns.

         C. Procedural History

         1. Federal Court

         On December 20, 2012, the Berretts filed a complaint and demand for a jury trial in federal district court alleging violations of the Americans with Disabilities Act, the Fair Housing Act, Idaho's Whistleblower Act, and wrongful termination in violation of public policy. The federal district court granted summary judgment to the School District on all of the Berretts' claims and entered a final judgment on September 30, 2014. The Berretts appealed, and on March 17, 2017, the Ninth Circuit Court of Appeals affirmed the district court on all of the Berretts' federal claims, but remanded the case back to the district court on the Whistleblower Act and termination in violation of public policy claims. Specifically, the Ninth Circuit found that the district court erred in granting the School District's summary judgment motion because Ryan Berrett established a prima facie case of retaliatory discharge under the Whistleblower Act. Further, the Ninth Circuit affirmed the federal district court's decision finding that Lanie Berrett did not engage in any protected activity that afforded her protection under the Whistleblower Act. However, the Ninth Circuit found the district court failed to address whether Lanie Berrett sufficiently raised a common law claim for termination in violation of public policy-that is, firing Lanie Berrett in retaliation for Ryan Berrett's ...

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