RONALD RYAN BERRETT AND LANIE BERRETT, husband and wife, Plaintiffs-Appellants,
CLARK COUNTY SCHOOL DISTRICT NO. 161, Defendant-Respondent.
from the District Court of the Seventh Judicial District of
the State of Idaho, Jefferson County. Bruce Pickett, District
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.
Angell & Associates, LLP, Idaho Falls, for respondent.
Ryan A. Jacobsen argued.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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,
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."
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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 ...