Mallonee v. State

• Decision Date: 30 January 2004
• Docket Number: No. 29032.,29032.
• Citation: 84 P.3d 551,139 Idaho 615
• Parties: Norman MALLONEE, Plaintiff-Appellant, v. STATE of Idaho, Idaho Department of Correction and Mike Yae, Defendants-Respondents.
• Court: Idaho Supreme Court

84 P.3d 551

139 Idaho 615

Norman MALLONEE, Plaintiff-Appellant, v. STATE of Idaho, Idaho Department of Correction and Mike Yae, Defendants-Respondents.

No. 29032.

Supreme Court of Idaho, Boise, December 2003 Term.

January 30, 2004.

Huntley, Park, LLP, Boise, for appellant. Daniel E. Williams argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent Department of Correction. Phillip J. Collaer argued.

Sasser & Inglis, Boise, for respondent Yae. Clay M. Shockley argued.

BURDICK, Justice.

NATURE OF THE CASE

In this case, Norman Mallonee challenged the termination of his employment, claiming that he was discharged in violation of the Idaho Protection of Public Employee's Act, public policy exception for at-will employees and his First Amendment rights. He appeals from the district court's dismissal of the action upon the employer's motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In his job as manager of transportation at Correctional Industries (CI), Norman Mallonee had responsibilities which included oversight of drivers who delivered furniture along with inmates from Southern Idaho Correctional Institution (SICI) that were hired for this work. Mallonee began his employment in March of 1999 and reported to Mike Yae, the CI director.

Shortly after Mallonee assumed his duties at CI, an incident arose involving a CI driver (Mitch Hoitt), which prompted an investigation. Through the investigation conducted by Lt. Tim Higgins regarding the driver, it was determined that the driver had allowed the inmates to smoke cigarettes and further that the driver had, without authorization, gone outside of his delivery area to Nampa after the deliveries were completed, in violation of department policy. In a meeting scheduled after the driver was interviewed by the investigator, Yae called in the driver to discuss the allegations and to offer him the choice of resigning or being terminated. The driver resigned, putting an end to the investigation, which had not at that time been completed, and allegedly precluding discovery of the full scope of the problems with the CI drivers and inmates.

In May of 1999 Yae and Mallonee conferred about the need to have the CI drivers keep written logs. The two men discussed the importance of accurate logs and other ideas to improve the monitoring of the drivers and security concerns in general. In September, one of the CI drivers, Alan Even, reported to Mallonee that he had allowed inmates to smoke, wear unauthorized clothing, make unauthorized visits to their homes, and he felt he and his family were being threatened by two of the inmates. Mallonee informed the chain of command, and an investigation as to Even began. On September 15, 1999, investigator, Lt. Lee spoke with Even and with another driver, Don McPherson, who also became the focus of an investigation. Both drivers admitted to violations of the protocol and policies governing their employment.

Yae determined that the admissions of the violations by Even and McPherson merited that they be terminated. Yae ordered Mallonee to fire the two drivers, but Mallonee resisted. Recalling that the Mitch Hoitt investigation had abruptly ended with his resignation, Mallonee indicated that he could not fire the drivers while the investigation was still pending and reminded Yae that discussing an ongoing investigation was prohibited. Mallonee then spoke to Yae's supervisor, Don Drum, and Warden Wright, expressing concern about the repercussions of not complying with Yae's order to fire the drivers. On September 17, 1999, a briefing was held disclosing the status of the investigation, after which Yae reiterated his order that Mallonee fire the drivers.

On the following Monday, September 20, 1999, Yae sent Mallonee an e-mail spelling out the steps to take with regard to obtaining Lt. Lee's final investigative report, calling in the two drivers and presenting them with the option of resigning or being terminated. Yae directed Mallonee to "do it Tuesday. I don't think this should go past Tuesday." Yae left messages for Mallonee to call and discuss this further. On September 23, 1999, Yae called Mallonee in for a meeting to discuss Mallonee's job performance, including his inability to get things accomplished, his poor management decisions, his failure to progress with the hiring of new drivers and his refusal to follow Yae's order to discharge Even and McPherson. On September 27, 1999, Mallonee still had not acted to fire the driver, Yae gave Mallonee an evaluation and an opportunity to resign or be terminated without cause. Mallonee became hostile in response to Yae's criticisms, and Yae terminated him. Mallonee was terminated from his employment before Yae or Mallonee had seen the final written report of the investigation from Lt. Lee.

Mallonee filed suit on March 9, 2000, against the State Department of Corretions and Mike Yae for wrongful termination. The State, joined by Yae, filed a motion for summary judgment, which the district court granted dismissing all of Mallonee's claims. Mallonee requested that the district court reconsider its decision. The order on reconsideration reflected alterations of some of the court's factual findings, which did not however affect its original conclusions of law. Judgment was entered on September 23, 2002. Mallonee appeals.

STANDARD OF REVIEW

The standard of review on appeal from the district court's entry of summary judgment is the same standard as required of the district court when initially ruling on the motion. Truck Ins. Exch. v. Bishara, 128 Idaho 550, 916 P.2d 1275 (1996). Summary judgment is only appropriate when genuine issues of material fact are absent and the case can be decided as a matter of law. I.R.C.P. 56(c); Moss v. Mid-American Fire and Marine Ins. Co., 103 Idaho 298, 302, 647 P.2d 754, 758 (1982). On causes of action to be tried to a jury, the party opposing summary judgment is entitled to the benefit of every reasonable inference that can be drawn from the evidentiary facts. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 808 P.2d 851 (1991). All controverted facts are liberally construed in favor of the party opposing the summary judgment. Tusch Enterprises v. Coffin, 113 Idaho 37, 740 P.2d 1022 (1987). The existence of disputed facts will not defeat summary judgment when the plaintiff fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he will bear the burden of proof at trial. Garzee v. Barkley, 121 Idaho 771, 774, 828 P.2d 334, 337 (Ct. App.1992).

ANALYSIS

Mallonee contests the summary judgment dismissing his claims, raising as issues on appeal the district court's conclusions that (1) the Idaho Protection of Public Employees Act (IPPEA) does not apply to suspected violations of state departmental policies; (2) Mallonee's termination was not in violation of public policy; (3) neither the State nor the Idaho Department of Corrections were negligent in their supervision of Mike Yae; and (4) Yae was entitled to a defense of qualified immunity. Mallonee also claims that the district court erred in failing to draw reasonable inferences in his favor as to whether his protected speech regarding Yae's orders was a motivating factor in Yae's decision to terminate Mallonee. Finally, Mallonee argues that it was error for the district court to grant the State's motion to strike the report from the Office of the Attorney General, which he claims is a public record.

I.

Mallonee argues that summary judgment should not have been granted on his Idaho Protection of Public Employees Act (IPPEA) claim. He asserts that the district court read the statute, I.C. § 6-2101, too narrowly in excluding from its purview violations of departmental policy. He also asserts that the district court failed to view the evidence in a light most favorable to him as the non-moving party on the summary judgment motion.

Idaho Code § 6-2101 et seq. is commonly referred to as the whistle-blower statute, which seeks to "protect the integrity of government by providing a legal cause of action for public employees who experience adverse action from their employer as a result of reporting waste and violations of a law, rule or regulation." Mallonee argues that the broad language of I.C. § 6-2101 is expanded by the varying language found in Sections 1(a) and (3) of I.C. § 6-2104, which addresses "law, rule or regulation adopted under the law of this state" and "law, rule or regulation adopted under the authority of the laws of this state," respectively. Mallonee insists that to exclude from the protection of the IPPEA the reporting of violations of "policies" would vitiate the purposes of the statute.

"Rule" means the whole or a part of an agency statement of general applicability that has been promulgated in compliance with the provisions of this chapter and that implements, interprets, or prescribes:

(a) law or policy; or

(b) the procedure or practice requirements of an agency. The term includes the amendment, repeal, or suspension of an existing rule, but does not include:

(i) statements concerning the internal management or internal personnel policies of an agency and not affecting private rights of the public or procedures available to the public; or ...

I.C. § 67-5201(19).

A rule or regulation of a public administrative body ordinarily has the same force and effect of law and is an integral part of the statute under which it is made just as though it were prescribed in terms therein. The same principles of construction that apply to statutes apply to rules and regulations promulgated by an administrative body. Higginson v. Westergard, 100 Idaho 687, 690, 604 P.2d 51, 54 (1979). The phrase, "rules and regulations," as routinely used is basically synonymous and with the inclusion of statutes covers the entire authority of the agency in the regulated area.

The main question before the district court was...