FILED
NOT FOR PUBLICATION
MAR 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD RYAN BERRETT; LANIE No. 14-35894
BERRETT,
D.C. No.
Plaintiffs-Appellants, 4:12-cv-00626-EJL-CWD
v.
MEMORANDUM*
CLARK COUNTY SCHOOL DISTRICT
NO. 161,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted March 9, 2017
Seattle, Washington
Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.
Plaintiffs Ronald Ryan and Lanie Berrett appeal the district court’s order
granting summary judgment in favor of defendant Clark County School District
(Clark County). We have jurisdiction under 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The district court erred in granting Clark County’s motion for summary
judgment on Mr. Berrett’s claim for retaliatory discharge under the Idaho
Protection of Public Employees Act (Idaho Whistleblower Act). Mr. Berrett
established a prima facie case of retaliatory conduct by presenting evidence that:
he engaged in protected activity by reporting “a violation or suspected violation of
a law,” Idaho Code § 6-2104(1)(a); he suffered an “adverse action” when he was
terminated, id. § 6-2103(1); and the “close relation in time” between them, among
other factors, suggests he may have been fired for reporting the propane issue.
Curlee v. Kootenai Cty. Fire & Rescue, 148 Idaho 391, 397 (2008). This is
sufficient to create a genuine issue of material fact to survive summary judgment.
Id. at 396 (holding that the McDonnell Douglas burden-shifting framework does
not apply to claims under the Idaho Whistleblower Act at the summary judgment
stage).
The district court correctly held that Ms. Berrett did not engage in any
protected activity and therefore cannot bring a claim under the Idaho
Whistleblower Act. However, the court failed to address Ms. Berrett’s common
law claim for termination in violation of public policy—that is, firing her in
retaliation for her husband’s statutorily protected whistleblower activity—and
should consider on remand whether this claim also survives summary judgment.
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The district court did not err in granting Clark County’s motion for summary
judgment on the Berretts’ claims under the Americans with Disabilities Act of
1990 (ADA), because the Berretts failed to raise a genuine issue of material fact as
to whether they were terminated “because of [Mr. Berrett’s] disability.” Allen v.
Pacific Bell, 348 F.3d 1113, 1114 (9th Cir. 2003) (per curiam). The Berretts also
argue that they were terminated for Mr. Berrett’s reasonable accommodation
requests but failed to produce evidence supporting this theory.
Nor did the district court err in granting Clark County’s motion for
summary judgment on the Berretts’ claims under the Fair Housing Act. Clark
County provided evidence that the Berretts were evicted because they were no
longer employees, and the Berretts do not offer any direct or circumstantial
evidence that they were evicted because of Mr. Berrett’s disability. Nor is there a
genuine issue of material fact as to whether Clark County raised the Berretts’ rent
or altered the Berretts’ payment policy because of Mr. Berrett’s disability.
Although Clark County asserted that it changed the Berretts’ payment policy to
avoid raising Mr. Berrett’s income to the point where he would lose his disability
benefits, such economic considerations do not constitute discrimination based on
disability.
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Finally, the district court did not err by declining to rule on evidentiary
objections that were not “material to its ruling.” Norse v. City of Santa Cruz, 629
F.3d 966, 973 (9th Cir. 2010) (en banc).
The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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FILED
MAR 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Ronald Ryan Berrett; Lanie Berrett v. Clark County School District No. 161, No.
14-35894
IKUTA, Circuit Judge, dissenting in part:
I disagree only with the majority’s ruling that the district court failed to
address Ms. Berrett’s claim relating to public policy. The district court reasonably
addressed (and rejected) this claim to the extent Ms. Berrett raised and argued it.
The Berretts argued that they were terminated in violation of public policy
both under the Idaho Whistleblower Act and as a common law claim. But Ms.
Berrett did not explain how she established the elements of either the statutory or
common law claim. In their complaint, the Berretts merely claimed that
“Plaintiffs’ terminations from employment were also a common law action that is
contrary to the public policy of the State of Idaho.” In their opposition to Clark
County’s motion for summary judgment, the Berretts claimed only that “they were
terminated in violation of public policy, the ADA and Idaho Code § 6-2101 et
seq.” Moreover, their opposition conceded that the public policy exception is
triggered “only where an employee is terminated for engaging in some protected
activity,” and the “claimed public policy generally must be rooted in ‘case law or
statutory language.’” Ms. Berrett did not claim that the public policy exception is
triggered when an employee is terminated due to the employee’s spouse’s
engaging in protected activity, and she failed to point to any case law or statutory
language so holding.
The district court addressed Ms. Berrett’s claim and rejected it. The court
held that “Ms. Berrett’s situation in the school lunchroom” did not qualify as
“‘protected activities’ that would be covered under the public policy exception to
the at-will doctrine or under the Whistleblower Act.” Noting that “Ms. Berrett has
not provided facts to support her termination violated public policy or was due to
any concerns she raised under the Whistleblower Act,” the court expressly
dismissed her statutory claim and implicitly dismissed her common law claim.
Any error in failing to expressly dismiss her common law claim was harmless.
On appeal, Ms. Berrett argues at length that the proffered reason for her
termination (budget exceedances) was pretextual, but does not provide any
argument or authority supporting a contention that she was fired in violation of
Idaho public policy because her spouse engaging in protected activity. Because
“[w]e will not manufacture arguments for an appellant, and a bare assertion does
not preserve a claim,” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994), Ms.
Berrett has waived the argument the majority reserves for her, see Martinez-
Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996). Accordingly, remand is
2
unwarranted on Ms. Berrett’s common law claim. Therefore, I respectfully dissent
in part.
3