Case 4:18-cv-00266-JMM Document 55 Filed 02/02/21 Page 1 of 22
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF IDAHO
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`TOMMY “SHANE” BODEN
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`PLAINTIFF
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`VS.
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`4:18-CV-00266-JM
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`NUTRIEN AG SOLUTIONS, INC., formerly
`known as CROP PRODUCTION SERVICES, INC.
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`ORDER
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`DEFENDANT
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`Pending are Defendant’s Motion for Summary Judgment (Doc. No. 31) and Motion to
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`Strike (Doc. No. 47). Plaintiff responded and Defendant replied.1 For the reasons stated below,
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`Defendant’s Motion to Strike is GRANTED and the Motion for Summary Judgment is
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`GRANTED in PART and DENIED in PART.
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`I.
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`BACKGROUND
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`In March 2014, Defendant hired Plaintiff, who was 58 years old, as an agricultural
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`salesperson at its Idaho Falls branch.2 Later in 2014, Defendant’s Idaho Falls branch stopped
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`selling agricultural products, so Plaintiff was transferred to its Roberts, Idaho branch.3
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`On April 6, 2016, Plaintiff was injured at work,4 and reported the injury to his supervisor,
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`Greg Eames. On May 6, 2016, Plaintiff talked to Eames about seeing a doctor for his injury.
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`Plaintiff also contacted Defendant’s Safety Manager and was told how to make a worker’s
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`compensation claim. He filed the claim on May 7, 2016. On May 12, 2016, another supervisor,
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`Jeremy Jensen, asked Plaintiff about the injury, and told him that he “knew better.”5 The parties
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`disagree as to whether Jensen was referring to the accident or the filing of the claim.
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`1Doc. Nos. 45, 53, 54.
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`2Doc. No. 31-2, p.3.
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`3Id. at 4.
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`4Id. at 6.
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`Sometime before May 5, 2016, Jensen told Plaintiff that he must reach a $250,000 yearly
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`sales goal to keep his job.6 In October 2016, Defendant terminated Plaintiff’s employment.7
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`Jensen told Plaintiff that he was being fired because he failed to meet his sales goals.8
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`On April 4, 2017, Plaintiff filed a Charge of Discrimination with the Idaho Human
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`Rights Commission (“IHRC”) and the Equal Employment Opportunity Commission (“EEOC”).
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`In March 2018, Plaintiff received Notice of Right to Sue Letters from both the IHRC and the
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`EEOC. Plaintiff file this case alleging that he was fired based on his disability, age, and in
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`retaliation for filing a worker’s compensation claim.
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`II.
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`APPLICABLE LAW
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`Summary judgment is proper “if the movant shows that there is no genuine dispute as to
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`any material fact and the movant is entitled to judgment as a matter of law.”9 The Court’s role at
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`summary judgment is not “to weigh the evidence and determine the truth of the matter but to
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`determine whether there is a genuine issue for trial.”10 In considering a motion for summary
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`judgment, the Court must “view[ ] the facts in the non-moving party’s favor.”11 To defeat a
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`motion for summary judgment, the respondent need only present evidence upon which “a
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`5Id. at 8.
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`6Id.
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`7Id. at 6.
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`8Id.
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`9Fed. R. Civ. P. 56(a).
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`10Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted).
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`11Id.
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`Case 4:18-cv-00266-JMM Document 55 Filed 02/02/21 Page 3 of 22
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`reasonable juror drawing all inferences in favor of the respondent could return a verdict in [his or
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`her] favor.”12 On the other hand, as the Supreme Court has made clear: “Where the record taken
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`as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
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`genuine issue for trial,” and summary judgment is appropriate.13
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`Accordingly, the Court must enter summary judgment if a party “fails to make a showing
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`sufficient to establish the existence of an element essential to that party’s case, and on which that
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`party will bear the burden of proof at trial.”14 The respondent cannot simply rely on an unsworn
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`affidavit or the pleadings to defeat a motion for summary judgment; rather the respondent must
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`set forth the “specific facts,” supported by evidence, with “reasonable particularity” that
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`preclude summary judgment.15
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`III. DISCUSSION
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`A. Motion To Strike
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`Before considering Plaintiff’s claims, the Court must address Defendant’s Motion to
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`Strike, given its potential impact on the Motion for Summary Judgment.
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`Defendant seeks to strike parts of the Statement of Facts, and the declarations by Plaintiff
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`and Isaac Walker. Defendant argues that Plaintiff’s declaration is inconsistent with his
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`deposition testimony, and that he inappropriately used these statements in his disputed statement
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`of facts, in violation of the sham affidavit rule. It also contends that Brown’s declaration contains
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`12Id. (citation omitted).
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`13Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
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`14Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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`15Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001).
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`Case 4:18-cv-00266-JMM Document 55 Filed 02/02/21 Page 4 of 22
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`hearsay and should not be considered. Plaintiff asserts that he merely elaborated, explained, and
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`clarified his earlier answers and there is no “clear and unambiguous” discrepancy.
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`1.
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`Sham Affidavit Rule
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`The “sham affidavit rule prevents a party who has been examined at length on deposition
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`from raising an issue of fact simply by submitting an affidavit contradicting his own prior
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`testimony.”16 However, “[t]he sham affidavit rule should be applied with caution because it is in
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`tension with the principle that the court is not to make credibility determinations when granting
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`or denying summary judgment.”17 In addition, “the non-moving party is not precluded from
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`elaborating upon, explaining, or clarifying prior testimony elicited by opposing counsel on
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`deposition and minor inconsistencies that result from an honest discrepancy, a mistake, or newly
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`discovered evidence afford no basis for excluding an opposition affidavit.”18
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`The Court must determine whether the “inconsistency between [Plaintiff’s] deposition
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`testimony and his subsequent declaration is clear and unambiguous to justify striking the
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`affidavit.”19 The declaration is a sham if “no juror would believe [Plaintiff]’s weak explanation
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`for his sudden ability to remember”20
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`Plaintiff’s declarations address two specific issues in the case: (1) whether Jensen was the
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`sole person who hired him and (2) whether Jensen knew Plaintiff filed a worker’s compensation
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`claim before he informed Plaintiff of his $250,000 sales requirements for 2016.
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`16Id. at 1080 (citations and punctuation omitted).
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`17Id. (citation and punctuation omitted).
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`18Id. at 1081 (citations omitted).
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`19Yeager v. Bowlin, 693 F.3d 1076, 1079 (9th Cir. 2010) (citations omitted).
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`20See id.
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`Case 4:18-cv-00266-JMM Document 55 Filed 02/02/21 Page 5 of 22
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`These specific statements impact elements of Plaintiff’s claims. First, they impact
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`whether the “same actor inference” is available to Defendant because the hiring and firing
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`decision was made by the same person. Second, the retaliation claim incorporates a time line that
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`shows Jensen knew about the worker’s compensation claim before telling Plaintiff about his
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`sales goals.
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`Plaintiff’s deposition testimony clearly indicates that he contacted Jensen about the job,
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`and Jensen approved his hiring, but left the final details to Michael Larkin because he would be
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`the local manager where Plaintiff would be working.21 It is undisputed that Jensen was the
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`Division Manager who oversaw the sales staff in all of Defendant’s Idaho stores.22 Plaintiff’s
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`declaration attempts to diminish Jensen’s participation in the hiring process to a mere
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`introductory role, leaving Larkin as the sole hiring decision-maker, which is a clear contradiction
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`to his previous testimony.23 Additionally, during the deposition, Plaintiff was unsure how or
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`when the final hiring decision was made,24 but Plaintiff’s declaration claims Larkin made the
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`decision on his own, following a lunch meeting.25
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`Similarly, Plaintiffs’ declaration inexplicably changed the date he first notified
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`Defendant of his worker’s compensation claim and the date Jansen told him about the new sales
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`goals.26 Plaintiff testified that Jensen told him he needed to increase his sales in a conversation
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`before May 6, 2016. A series of e-mails, confirmed by Plaintiff during his deposition, dated
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`21Doc. No. 45-3, pp. 6- 8.
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`22Doc. No. 31-2, p. 3.
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`23Id.
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`24Doc. No. 45-11, p. 3.
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`25Doc. No. 45-11, p. 3.
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`26Doc. No. 45-3, p. 8.
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`May 5, 2016, makes clear that the meeting with Jensen was sometime before that date.27
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`Plaintiff testified his first request for treatment was made the day before his worker’s
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`compensation claim was filed on May 7.28
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`However, in his Statement of Disputed Facts, Plaintiff claims that “[o]n May 2 or 3,
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`2016, [Plaintiff] told Eames he needed medical treatment for his injury, and wanted to see a
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`doctor.”29 Additionally, contrary to earlier testimony, Plaintiff contends that “[s]oon after [he]
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`told Eames he needed medical treatment, Jensen told [him] for the first time [he] needed to pass
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`$250,000 in gross profit.”30 He claims he came to this revelation by consulting a calendar and
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`his medical documents after his deposition.31 This is a weak basis for changing his testimony,
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`because Plaintiff was provided with dated documents and emails during his deposition.
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`Accordingly, the Court finds Plaintiff’s Declaration and Statement of Disputed Facts
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`improperly contradicts his deposition testimony. Plaintiff’s Declaration paragraphs 5, 6, 9, 11,
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`12, and 13 are stricken, as are portions of the Disputed Statement of Facts (paragraphs 3, 18-21,
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`and 36) that reference these paragraphs.
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`2.
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`Isaac Walker’s Declaration
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`To support his age-discrimination claim, Plaintiff’s Complaint asserts that Defendant
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`hired a younger employee to replace him. During discovery, Plaintiff learned that the person
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`who replaced him was already employed by Defendant. So, Plaintiff provided Isaac Walker’s
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`27Id. at 11.
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`28Id. at 21.
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`29Doc. No. 45-11, p. 4.
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`30Id. at 5.
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`31Id.
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`Case 4:18-cv-00266-JMM Document 55 Filed 02/02/21 Page 7 of 22
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`declaration to support his discrimination claim.32 He shifted away from saying Defendant hired
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`Baker to replace him, to arguing that Defendant instructed Baker to move-in on Plaintiff’s
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`customers.33 Walker’s declaration is provided to support this new position.34
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`The declaration is hearsay since it is an out-of-court statement offered to prove the truth
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`of the matter asserted, namely, that someone associated with Defendant told Baker to poach
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`Plaintiff’s existing customers.35 Inadmissible hearsay cannot be considered on a motion for
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`summary judgment.36 At the summary judgment stage, the Court need not decide whether
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`Walker’s declaration itself is admissible, but whether the information contained in the
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`declaration is admissible.37
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`Here, Walker’s Declaration is a statement about something Baker told him (Walker) that
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`an unidentified employee of Defendant told him (Baker), which is hearsay. Plaintiff argues that
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`the statements are admissible under the “party opponent” exception.38
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`At trial Baker could testify about statements he made to Walker. Similarly, Walker could
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`testify about Baker’s statement because Baker could be considered a “party opponent” as an
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`agent of Defendant. However, statements by an unidentified party are not admissible to prove
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`32Doc. No. 45-13.
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`33Doc. No. 45, p. 18.
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`34Doc. No. 45-13, p. 2.
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`35See Fed. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the
`declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
`matter asserted.”).
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`36Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir.1980).
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`37Fraser, 342 F.3d at 1036-37.
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`38 Fed. R. Evid. 801(d)(2).
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`the matter asserted through either Baker or Walker. The unidentified employee would not be a
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`party opponent to Baker and the statement was not made directly to Walker.39
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`Plaintiff also contends that the then-existing state-of-mind exception applies to Baker’s
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`statement to Walker.40 He argues the statement shows Baker’s “confusion” and therefore reflects
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`his then-existing state-of-mind and must be admitted.41 However, a “statement of memory or
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`belief to prove the fact remembered or believed” is not admissible.42 Plaintiff does not offer
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`Walker’s declaration about Baker’s statements to show Baker’s confusion. Instead, Plaintiff
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`offers these statements to show someone employed with Defendant actually sent Baker to
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`establish relationships with Plaintiff’s customers. Baker’s mental state is not at issue.
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`Accordingly, Plaintiff failed to show any hearsay exception applies to paragraph 7 of
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`Walker’s declaration. Accordingly, the Court will not use it in considering Defendant’s Motion
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`for Summary Judgment.
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`B.
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`ADA Claim
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`Defendant asserts that Plaintiff cannot establish that he is a disabled person under the
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`ADA. It relies on Plaintiff’s deposition testimony and his return-to-work note, both of which
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`indicate that he could perform his job without restrictions.43 Additionally, Defendant claims that
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`there is no evidence in the record to support it had any knowledge or belief of a disability when
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`Plaintiff was terminated.44
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`39 Fed. R. Evid. 805; Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 (9th Cir. 1990).
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`40Fed. R. Evid. 803(3).
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`41Id.
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`42Id.
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`43Doc. No. 31-1, p. 5.
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`44Id. at 6.
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`The ADA makes it unlawful for a covered employer to “discriminate against a qualified
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`individual with a disability because of the disability of such individual in regard to job
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`application procedures, the hiring, advancement, or discharge of employees, employee
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`compensation, job training, and other terms, conditions, and privileges of employment.”45
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`To state a prima facie case for discrimination under the ADA, a plaintiff must
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`demonstrate that: “(1) he is a disabled person within the meaning of the statute; (2) he is
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`qualified, with or without reasonable accommodation, to perform the essential functions of the
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`job he holds or seeks; and, (3) that he suffered an adverse employment action because of his
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`disability.”46
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`The ADA definition of “disabled” requires a plaintiff to demonstrate that either (1) he has
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`a physical or mental impairment substantially limiting at least one major life activity; (2) there is
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`a record of his impairment; or (3) he is “regarded as” having a physical or mental impairment.47
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`Major life activities include both performing manual tasks and working.48 “Regarding” a
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`plaintiff as disabled “means that the individual has been subjected to an action prohibited by the
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`ADA . . . because of an actual or perceived impairment.”49 This occurs “whether or not that
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`impairment substantially limits, or is perceived to substantially limit, a major life activity.”50
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`“Establishing that an individual is ‘regarded as having such an impairment’ does not, by itself,
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`4542 U.S.C. § 12112(a).
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`46Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154, 1156 (9th Cir. 2000);
`Harris v. Treasure Canyon Calcuim Co., 132 F. Supp. 3d 1228, 1236 (D. Idaho 2015).
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`4742 U.S.C. § 12102; 29 C.F.R. § 1630.2(g)(1).
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`4842 U.S.C. § 12102(2)(A).
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`4929 C.F.R. § 1630.2(g)(1)(iii).
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`50Id.
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`establish liability.”51 Liability occurs only if the employer discriminated against the plaintiff by
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`subjecting him to a prohibited action because of a perceived disability.52
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`Plaintiff contends that his work injury “affected his ability to stand, sit, sleep, lift, lift his
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`leg, and run.”53 He also states the injury made “it difficult to get in his work vehicle and deliver
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`product to customers.”54 However, Plaintiff has provided no evidence that he was in fact
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`disabled beyond his own statements. In fact, Plaintiff’s treating physician allowed him to work
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`without restrictions less than three months following his injury, after a visit in July 2016, and
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`again in September 2016.55
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`Plaintiff also has failed to produce sufficient evidence that would allow a jury to
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`reasonably conclude his disability was a motivating factor in his termination. He has provided no
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`evidence that Defendant was aware of disability or that the disability itself motivated his
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`termination. Plaintiff contends that Defendant must have perceived his disability because he
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`wore a back brace at work.56 Yet, Plaintiff admits that neither Jensen nor Eames had any
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`knowledge of his alleged limitations.57 Additionally, he never requested any accommodation.58
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`51Id.
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`5229 C.F.R. § 1630.2(l)(3).
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`53Doc. Nos. 45-1, p. 8; 31-2, p. 9.
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`54Doc. Nos. 45-1, p. 8.
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`55Doc. Nos. 45-1, p. 6.
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`56Id.
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`57Doc. No. 31-2, p. 9.
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`58Id.
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`Plaintiff testified Jensen and Eames “didn’t even care to ask” and “showed no, you know,
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`interest at all” in the extent of his injuries.59
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`Accordingly, the Court grants Defendant’s Motion for Summary Judgment on the ADA
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`claim. Plaintiff failed to establish he was disabled under the ADA and no material fact dispute
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`remains regarding whether Defendant based its termination decision on any actual or perceived
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`disability.
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`C.
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`Age Discrimination Claim
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`Plaintiff alleges that Defendant violated the ADEA because Jensen fired him based on his
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`age. According to the Plaintiff, Jensen commenced a course of conduct designed to justify the
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`intended termination and disguise the fact that it was age-related.. In particular, Plaintiff alleges
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`Jensen changed the sales goals requirements to show poor performance with the goal of
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`ultimately firing him.
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`To prevail on a claim for age discrimination, a plaintiff must demonstrate that his age
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`was the “but-for” cause of the employer’s adverse action.60 “Unlike Title VII, ... the ADEA’s
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`text does not provide that a plaintiff may establish discrimination by showing that age was
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`simply a motivating factor.”61 However, this rule applies only to a plaintiff’s burden at trial, and
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`not at the summary judgment stage.62 Standards of proof under Title VII of the 1964 Civil
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`Rights Act remain controlling at the summary judgment stage of lawsuits alleging ADEA
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`59Id.
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`60Gross v. FBL Fin. Serv., 557 U.S. 167, 176 (2009).
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`61Id. at 167–68.
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`62Shelley v. Geren, 666 F.3d 599, 607–608 (9th Cir.2012).
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`violations.63 At summary judgment, ADEA claims use the McDonnell Douglas burden-shifting
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`framework.64 “Under that framework, the burden of production first falls on the plaintiff to make
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`out a prima facie case of discrimination.”65
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`To establish a prima facie case of age discrimination, Plaintiff must show that he was:
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`“(1) at least forty years old, (2) performing [his] job satisfactorily, (3) discharged, and (4) either
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`replaced by substantially younger employees with equal or inferior qualifications or discharged
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`under circumstances otherwise ‘giving rise to an inference of age discrimination.’”66
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`A plaintiff can satisfy the last requirement by presenting “circumstantial, statistical or
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`direct evidence that the discharge occurred under circumstances giving rise to an inference of
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`age discrimination.”67 For example, “[a]n inference of discrimination can be established by
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`showing the employer had a continuing need for the employees’ skills and services in that their
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`various duties were still being performed . . . or by showing that others not in their protected
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`class were treated more favorably.”68 The proof to establish a prima facie case of age
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`discrimination “is minimal and does not even need to rise to the level of a preponderance of the
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`evidence.”69
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`63Id.
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`64McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Ritter v. Hughes Aircraft
`Co., 58 F.3d 454 (9th Cir. 1995).
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`65Coghlan v. Am. Seafoods Co., LLC, 413 F.3d 1090, 1094 (9th Cir. 2005).
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`66Diaz v. Eagle Produce, Ltd., 521 F.3d 1201, 1207 (9th Cir.2008) (citation omitted).
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`67Wallis v. J.R. Simplot, Co., 26 F.3d 885, 891 (9th Cir. 1994); see also Diaz, 521 F.3d at
`1211 (“[W]e treat the last element of the prima facie case with ‘flexibility’.”).
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`68Diaz, 521 F.3d at 1207–08 (internal citations and quotation marks omitted)
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`69Coghlan, 413 F.3d at 1094.
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`If the plaintiff establishes a prima facie case, the burden shifts to the defendant “to
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`articulate a legitimate nondiscriminatory reason for its employment decision.”70 If the defendant
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`does so, the plaintiff then “must demonstrate that the employer’s alleged reason for the adverse
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`employment decision is a pretext for another motive which is discriminatory.”71
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`It is undisputed that Plaintiff has satisfied the first and third elements. Defendant,
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`however, argues that Plaintiff has failed to establish the remaining elements because (1) Plaintiff
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`was not performing his job satisfactorily at the time of his termination; and (2) there is no
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`evidence that Jensen would not have terminated Plaintiff but for his age.
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`According to Defendant, Plaintiff was not performing his job satisfactorily and he was
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`not going to be able to meet his sales goals. This assumption was based on his sales figures as of
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`August 2016. Defendant also points to Plaintiff’s low sales performance in all three growing
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`seasons in which he was employed.72 However, Plaintiff did exceed the minimum requirement
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`in those years.
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`Plaintiff relies on Eames’s testimony that the Roberts branch had no policy setting out a
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`base amount of sales to be consider a low performer.73 He also testified that the sales goal at the
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`Roberts branch was $150,000.74 In fact, a colleague, Mr. Poole, who worked at the Roberts
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`branch for 26 years had a baseline sale incentive of $150,000.75 Considering that Plaintiff’s
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`70Wallis, 26 F.3d at 889.
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`71Id.
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`72Doc. No. 31-2, pp. 3-4.
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`73Doc. No. 45-1, p. 5.
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`74Id.
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`75Id.
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`burden in establishing a prima facie case of disparate treatment is “minimal,”76 the Court finds
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`that, for the purposes of this motion only, Plaintiff has presented sufficient evidence to
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`demonstrate that he had performed his duties satisfactorily before the allegedly discriminatory
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`termination.
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`The next issue is whether he has shown that he was either replaced by a substantially
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`younger employee with equal or inferior qualifications or discharged under circumstances
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`otherwise giving rise to an inference of age discrimination.77
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`Plaintiff has not presented any evidence that Defendant hired a younger individual to
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`perform his duties. He alleges he was replaced by a younger employee, Chet Baker (age 32), but
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`Baker was transferred from another branch and had been hired ten months before Plaintiff was
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`fired.
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`Plaintiff also has failed to make a sufficient showing of “circumstances otherwise giving
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`rise to an inference of age discrimination.” Defendant provided evidence that a high percentage
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`of its employees within the division managed by Jensen are above 40 years old, the protected age
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`under the ADEA. Specifically, of the 48 sales persons currently under Jensen’s management
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`three-fourths are over age 40, half of those are over age 50, and one-fifth of those are over age
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`60. Additionally, the evidence shows that, under Jensen’s management, the percentage of
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`employees over ages 50 and 60 has increased.78
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`76See Coghlan, 413 F.3d at 1094.
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`77See Diaz, 521 F.3d at 1207.
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`78Doc. No. 31-2, p. 2.
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`Plaintiff cites four employees who he contends were younger and treated differently
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`because of their age.79 He asserts these employees had lower sales numbers, but were allowed to
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`maintain their employment, or were given accounts which increased their chances of achieving
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`the required gross profits.80 However, Plaintiff has provided no evidence, beyond his own
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`conclusory allegations, to establish that this was age-related. Plaintiff also points to statements
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`made by Jensen to two customers after his termination that indicated he had hired someone
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`“younger.” 81
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`Considering the totality of the circumstances, Plaintiff has not produced sufficient
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`evidence giving rise to an inference of age discrimination. Accordingly, Plaintiff failed to make
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`a prima facie case under the ADEA.
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`Even if Plaintiff had met his burden, Defendant provided a legitimate, non-discriminatory
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`reason for discharge. Thus, Plaintiff bears the ultimate burden of persuading the Court that the
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`stated reason for the discharge was false and the true reason for the discharge was unlawful age
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`discrimination. To avoid summary judgment, Plaintiff “must do more than establish a prima
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`facie case and deny the credibility of the [Defendant’s] witnesses.”82 He must produce “specific,
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`substantial evidence of pretext.”83
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`Plaintiff argues that Jensen’s real reason for terminating him was age discrimination.
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`However, Jensen, the person who terminated Plaintiff, is the same person who made the hiring
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`79Doc. No. 45-1, pp. 4, 9.
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`80Id.
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`81Id. at 10.
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`82Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir.1994) (citation omitted).
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`83Id.
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`Case 4:18-cv-00266-JMM Document 55 Filed 02/02/21 Page 16 of 22
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`decision less than three years earlier. Considering the facts of this case, Plaintiff’s allegation
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`that Jensen wanted a younger person in the position is not persuasive. If Jensen had preferred to
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`place a younger person in the position, he would have hired one instead of Plaintiff. In fact, the
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`next person hired at the Roberts location was 56 years old and still works for Defendant.84
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`Where the same actor is responsible for both the hiring and the firing of a discrimination
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`plaintiff, and both actions occur within a relatively short period of time, a strong inference arises
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`that there was no discriminatory motive.85 Plaintiff failed to rebut this inference.
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`Accordingly, Defendant’s motion for summary judgment is granted with respect to the
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`ADEA claim.
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`D.
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`Retaliation Claim
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`Plaintiff argues that Defendant fired him because he filed a worker’s compensation
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`claim, which he contends is a violation of public policy.
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`In Idaho, “[u]nless an employee is hired pursuant to a contract which specifies the
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`duration of the employment, or limits the reasons why the employee may be discharged, the
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`employee is ‘at will.’”86 Plaintiff does not dispute that he was an at-will employee and that he
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`could have been terminated “at any time [or] for any reason without creating liability.”87
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`84Doc. No. 31-2, p. 11.
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`85See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270–71 (9th Cir. 1996) (citing
`Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173 (8th Cir.1992) (finding argument that company
`developed aversion to older people less than two years after hiring member of protected age
`group “simply incredible”); Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 464 (6th
`Cir.1995) (“An individual who is willing to hire and promote a person of a certain class is
`unlikely to fire them simply because they are a member of that class.”), cert. denied, 516 U.S.
`1078 (1996)).
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`86Venable v. Internet Auto Rent & Sales, Inc., 156 Idaho 574, 578 (2014) (citations
`omitted).
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`87Edmondson v. Shearer Lumber Products, 139 Idaho 172, 176 (2003).
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`Case 4:18-cv-00266-JMM Document 55 Filed 02/02/21 Page 17 of 22
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`However, even at-will employees may bring a claim of wrongful discharge.88 Idaho recognizes
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`“a narrow exception to the at-will employment presumption where the employer’s motivation for
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`the termination contravenes public policy.”89
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`“A termination contravenes public policy ‘only where an employee is terminated for
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`engaging in some protected activity, which includes (1) refusing to commit an unlawful act, (2)
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`performing an important public obligation, or (3) exercising certain legal rights and
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`privileges.’”90 This narrow exception “balance[s] the competing interests of society, the
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`employer, and the employee in light of modern business experience.”91 To succeed under the
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`public policy exception, an employee must show (1) that he was engaged in a legally protected
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`activity; and (2) that there is a causal relationship between his engagement in the protected
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`activity and his termination.92
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`At the summary judgment stage, Idaho courts carefully review the record to determine
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`whether reasonable minds could come to differing conclusions regarding why the adverse action
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`was taken.93
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`It is undisputed that Plaintiff engaged in protected activity for the purpose of bringing a
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`wrongful-termination claim when he filed his worker’s compensation claim.94 Plaintiff must
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`88Jackson v. Minidoka Irrigation Dist., 98 Idaho 330, 333 (1977).
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`89Bollinger v. Fall River Rural Elec. Co-op., Inc., 152 Idaho 632, 640 (2012).
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`90Venable, 156 Idaho at 579 (citations omitted).
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`91Crea v. FMC Corp., 135 Idaho 175, 178 (2000).
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`92Bollinger, 152 Idaho at 640.
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`93See Ray v. Nampa Sch. Dist. No. 131, 120 Idaho 117, 121–22 (1991); Bollinger, 152
`Idaho at 641–42.
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`94See Jackson, 98 Idaho at 334 (listing cases illustrating the public-policy exception to
`the employment-at-will doctrine, including Frampton v. Cent. Ind. Gas Co., 260 Ind. 249, 297
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`demonstrate there is a causal relationship between the filing the claim and his termination.
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`While the question of causation is generally one for the jury, “it may be decided as a matter of
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`law where there exists no genuine issue of fact.”95 However, Plaintiff must produce more than a
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`scintilla of evidence, such that a rational trier of fact could reasonably find that he was
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`terminated because of his worker’s compensation claim.
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`Plaintiff points to the following evidence to support this claim: (1) the ongoing treatment
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`he was receiving, (2) Jensen’s pre-occupation with tracking it, (3) the animosity expressed
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`toward his claim, (4) and the manipulated sales goal after Plaintiff filed his claim.
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`Plaintiff describes several instances where Eames and Jensen received information
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`concerning his ongoing doctor visits related to his work injury.96 There is nothing unusual about
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`Eames or Jensen, who are both supervisors, receiving emails about an employees work-related
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`injury.
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`Plaintiff provided some evidence of animosity to support causation.97 On the day of the
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`accident, Plaintiff informed Eames, but Eames did not report it, which violated company
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`policy.98 Plaintiff contends that Eames told other employees in August and September 2016 that
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`N.E.2d 425 (Ind.1973), in which the plaintiff was fired for reporting an injury to her arm so she
`could file for worker’s compensation, which the Indiana court held to be in clear contravention
`of public policy); see also Thomas v. Med. Ctr. Physicians, P.A., 138 Idaho 200, 208 (2002)
`(“This Court has also indicated that the public policy exception would be applicable if an
`employee were discharged, for example for refusing to date her supervisor, for filing a worker’s
`compensation claim, or for serving on jury duty.”)
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`95Bollinger, 152 Idaho at 640–41.
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`96Doc. No. 45-1, pp. 5, 6, 9.
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`97Coszalter, 320 F.3d at 977.
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`98Doc. No. 45-1, p. 3.
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`“[he] tried to fire that son of a bitch every day.”99 Plaintiff testified that, after the accident,
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`Eames started questioning Plaintiff’s billing practices.100 In September 2016, Plaintiff was told
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`he could no longer use his CDL, which prohibited from using a company vehicle for deliveries.
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`Other employees with the same condition were afforded accommodations.101 Additionally, it is
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`undisputed that Jensen told Plaintiff shortly after he filed his claim that “he knew better.”102
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`Plai