[00:00:00] Speaker 04:
Thank you, Judge Gould.

[00:00:01] Speaker 04:
Thank you, Judge D'Alba.

[00:00:02] Speaker 04:
And thank you, Judge Oreck.

[00:00:04] Speaker 04:
May it please the court.

[00:00:05] Speaker 04:
It's an honor to be here.

[00:00:07] Speaker 04:
I would like to reserve five minutes for rebuttal, if I may.

[00:00:12] Speaker 04:
There are two legal issues pending before this court on appeal, both of which are subject to de novo review.

[00:00:20] Speaker 04:
One, we are here today because the district court violated federal rule of civil procedure 56, which deprived Captain Tom Fleming

[00:00:29] Speaker 04:
of his constitutional right to trial by jury.

[00:00:33] Speaker 04:
Two, we are also here today, Your Honors, because the district court ignored the plain text and the statutory requirements that are unique to Idaho's Protection of Public Employees Act.

[00:00:47] Speaker 01:
Counsel, I have plenty of questions for you, so let me dive right in.

[00:00:50] Speaker 01:
Tell me what were the adverse employment actions that Captain Fleming suffered?

[00:00:55] Speaker 04:
The adverse employment actions were he was made miserable every day when he came to work.

[00:01:00] Speaker 04:
The adverse employment actions were that the city and particularly the former chief of police Ryan Lee interfered with his core job functions which were specific to him as the captain of the internal affairs department.

[00:01:15] Speaker 04:
Captain Fleming was made to be belittled.

[00:01:17] Speaker 04:
He was made to feel less than.

[00:01:19] Speaker 04:
He was harassed to the point that it not only impacted his ability to do his job, but it impacted his everyday life.

[00:01:28] Speaker 04:
And the testimony of his wife, who witnessed it firsthand, describing the nights in which he woke up with terrors and dreams of drowning or being buried alive,

[00:01:40] Speaker 04:
where he was come home pacing like a tiger in her words.

[00:01:45] Speaker 04:
Those are the types of torment and distress that no public servant should have to be exposed to.

[00:01:50] Speaker 01:
So now tell me what were the protected activity that he was engaging in?

[00:01:54] Speaker 04:
There were several your honor.

[00:01:56] Speaker 04:
The first was in August of 2021 when he reported the issue regarding the officer Tim Green.

[00:02:02] Speaker 04:
Officer Tim Green was an off duty police officer who was involved in a shooting in which a person was killed

[00:02:09] Speaker 04:
after being shot seven times by the police.

[00:02:12] Speaker 04:
Officer Fleming and his subordinate IA officer, whose name has been redacted and is in the sealed brief, her deposition is there, recommended that there were Brady issues with this Officer Tim Green's testimony to the IA investigator, as well as concerns about his fitness for duty because he claimed to be experiencing emotional harm from witnessing this incident.

[00:02:32] Speaker 04:
They encouraged him to be placed on paid administrative leave pursuant to public policy and the department's policy and Chief Lee refused to do so and harassed them and terrorized them.

[00:02:44] Speaker 04:
There was the testimony of the IAA investigator being so emotionally overcome that she had to excuse herself from the meeting in which he called after her, okay, Rodney King.

[00:02:54] Speaker 04:
The second was Mr. Fleming's participation in the Sergeant Kirk Rush incident in which the chief of police performed a stranglehold on Sergeant Rush during a department administrative meeting and broke his neck.

[00:03:09] Speaker 04:
And it was Captain Fleming in November of 2021 who referred that incident for outside investigation by the Idaho State Police and his name was in the police report providing notice to the chief of police who was responsible for that investigation.

[00:03:24] Speaker 04:
The third was Mr. Fleming's participation in the Office of Police Accountability's brief intake of the complaints, but which was quashed by city leadership, Your Honor.

[00:03:36] Speaker 04:
And those are the three protected activities in addition to his attempts to get help from his supervisor, Deputy Chief of Police Tammany Brooks.

[00:03:46] Speaker 01:
And so I was looking at the district court's order counsel, and they looked at eight specific instances of hostility by Chief Lee, but they found no constructive discharge because there was no change, according to the district court, in Mr. Fleming's working conditions.

[00:04:01] Speaker 01:
Address that, please.

[00:04:02] Speaker 04:
We dispute that contention, Your Honor.

[00:04:04] Speaker 04:
We believe that that was legal error.

[00:04:06] Speaker 04:
So missing from the

[00:04:09] Speaker 04:
Missing from the district court's written order are three aggravating factors and the this Ninth Circuit has required in I pardon my pronunciation, but it's midrig I believe versus Columbia machinery as well as Nolan versus Cleveland as well as Wallace versus City of San Diego the district court to look at those aggravating factors And there are three aggravating factors that the district court ignored below your honors The first is the emotional toll that this harassment was having on Captain Tom Fleming

[00:04:38] Speaker 04:
which forced him to choose between preserving his own mental health or sacrifice his career and financial security from his career in law enforcement.

[00:04:49] Speaker 04:
The second aggravating factor, your honor, was the lack of remedies available to Captain Fleming within the city of Boise, which is incompatible with the requirements of Idaho's whistleblower statute, subsection 2104, subsection four.

[00:05:07] Speaker 04:
The third aggravating factor, Your Honor, that the district court did not acknowledge in its written decision was the systemic scope of former Chief Lee's retaliation and hostility that materially altered and interfered with Fleming's core job functions as the captain of internal investigations and impacted not only Fleming himself, but at least half a dozen other city employees.

[00:05:30] Speaker 04:
I think that the absence of any citation to the affidavit of former

[00:05:35] Speaker 04:
Office of Police Accountability Director Jesus Hara is illustrative in this case, Your Honor, because that OPA report describes how this was in fact impacting the Boise Police Department from the top to the bottom, and that the police department was bleeding officers, and it's already hard enough to recruit officers, particularly in the state of Idaho, and that this was impacting not only Mr. Fleming,

[00:06:00] Speaker 04:
but impacting his subordinates and his colleagues, whom he took an oath to protect and serve, and that he, because of the interference by Chief Lee, as well as city leadership, that his own integrity, just like the integrity of the city of Boise, was under attack, and that he couldn't abide by these actions being associated with his name.

[00:06:22] Speaker 03:
What's the best case for you that expresses the hostile work environment that causes the constructive discharge?

[00:06:33] Speaker 04:
The best three cases, Your Honor, would be Wallace v. City of San Diego,

[00:06:38] Speaker 04:
Watson versus Nationwide Insurance and Nolan versus Cleveland.

[00:06:42] Speaker 04:
I would also bring the court's attention to Sorenson versus City of Caldwell, which was an unreported case, but is still similar.

[00:06:50] Speaker 04:
And these are instances in which there are multiple incidents of retaliation over the course of multiple months.

[00:06:59] Speaker 04:
And as a matter of law, this court has found that these are issues of fact.

[00:07:03] Speaker 04:
How many?

[00:07:05] Speaker 04:
are required is an issue of fact for the jury.

[00:07:07] Speaker 04:
There should not be any bright line rule.

[00:07:10] Speaker 04:
The only time that this court has recognized a bright line rule in which evidence does not amount to a constructive discharge is in that Shnidrig versus Columbia machinery in which a single isolated incident without those aggravating factors is not enough.

[00:07:26] Speaker 04:
I think the Nolan versus Cleveland, if I was going to choose one in which this was, I think the court identified one to four incidents that drew over the course of several years, I believe, was enough to be submitted to the jury.

[00:07:42] Speaker 04:
And in this case, we have a much higher volume of hostilities in a much tighter timeframe, in eight months.

[00:07:51] Speaker 04:
And the temporal proximity of the hostility to Captain Fleming's protected activities is very, very tight and very, very clear that Chief Lee, once he knew that Captain Fleming wasn't die-hard loyal to him, he was gone.

[00:08:07] Speaker 04:
And it was only a matter of time.

[00:08:09] Speaker 04:
And so,

[00:08:11] Speaker 04:
to address those aggravating factors as well, which takes this out of Shnidrig and into this is a jury trial issue, Your Honor.

[00:08:20] Speaker 04:
And so I think that there are two instances from the written decision and two instances from the hearing transcript that I think are illustrative of the violation of Rule 56 in this case, Your Honor.

[00:08:31] Speaker 04:
One is that can be found on pages 12 through 13 of the appellate record, which is when the district court wrote,

[00:08:37] Speaker 04:
Fleming identifies eight specific hostile work environments over the course of about eight months, plus broader climate problems at the police department, but problematically goes on to say that as a matter of law, the eight instances standing alone do not amount to constructive discharge.

[00:08:52] Speaker 04:
First of all, this is not a matter of law.

[00:08:54] Speaker 04:
This is a question of fact, and it should be for the jury to decide that in this democratic society.

[00:09:00] Speaker 04:
Second, we are not talking about eight incidents standing alone.

[00:09:03] Speaker 04:
First,

[00:09:04] Speaker 04:
there is the fact that this was also a daily pattern of behavior that Captain Fleming talked about that prior to these protected activities, he and Chief Lee had a great working relationship.

[00:09:14] Speaker 04:
They were friendly, they conversed, they worked well together.

[00:09:17] Speaker 04:
As soon as he came back from that knee surgery after reporting the rush incident, his working life changed.

[00:09:23] Speaker 04:
He was isolated.

[00:09:24] Speaker 04:
He was cast aside.

[00:09:26] Speaker 04:
He was ignored.

[00:09:27] Speaker 04:
And when he wasn't ignored, he was being actively harassed and demonstrated hostility.

[00:09:32] Speaker 04:
And so it's not just

[00:09:34] Speaker 04:
eight incidents standing alone, this is a greater pattern of behavior, as well as those aggravating factors that I've already addressed.

[00:09:41] Speaker 04:
And again, this court has never recognized a bright line rule, and we would posit that it would be legal error to adopt one, given the constitutional right to trial by jury.

[00:09:51] Speaker 04:
The other issue, Your Honor, is that the district court did not cite to 2104 subsection 4.

[00:09:59] Speaker 04:
And that is the provision that states, and it's unique to Idaho's Protection of Public Employee Act, that an employer may not implement rules or policies that unreasonably restrict an employee's ability to document the existence of waste of public funds.

[00:10:12] Speaker 04:
And in pages 15 of the appellate record, he goes through subsection one, subsection two, subsection three, but ignores subsection four.

[00:10:20] Speaker 04:
And that's a critical theory in this case.

[00:10:23] Speaker 04:
I notice that I'm going into my rebuttal time, but I do want to finish that thought.

[00:10:27] Speaker 04:
There was three ways in which the city of Boise unreasonably restricted his ability to document and report.

[00:10:32] Speaker 04:
The one was that they denied he and his colleagues access to the HR department.

[00:10:39] Speaker 04:
They all tried to go to city HR.

[00:10:40] Speaker 04:
They said, nope, we can't take your complaints.

[00:10:42] Speaker 04:
Then they go to OPA.

[00:10:44] Speaker 04:
Second, the OPA is an institution specifically created for politically independent investigations into police misconduct.

[00:10:51] Speaker 04:
The OPA director, Jesus Hara, recommended, there's a problem here.

[00:10:55] Speaker 04:
We need to investigate this further.

[00:10:57] Speaker 04:
City leadership says, nope, you are done.

[00:10:59] Speaker 04:
You are not to take any more BPD officers.

[00:11:01] Speaker 04:
We are closing this investigation.

[00:11:03] Speaker 04:
Case closed.

[00:11:04] Speaker 04:
And then the third way that they interfered was that they allowed the chief of police to oversee IA investigations in which he was the subject of the investigations.

[00:11:13] Speaker 04:
There's testimony regarding the chilling effect that that had your honors.

[00:11:17] Speaker 02:
I will reserve the rest of my time for rebuttal if I may I have one question Does the city of Boise have a right to stop the OPA from from proceeding

[00:11:39] Speaker 04:
No, your honor, and that was the subject of a separate lawsuit brought by mr.. Hazes hara himself.

[00:11:45] Speaker 04:
I was counsel in that case as well Okay, thank you.

[00:11:50] Speaker 02:
Thank you your honor And now we'll hear from the city of Boise Mr.. Judd

[00:12:10] Speaker 00:
May it please the court.

[00:12:12] Speaker 00:
My name is Erica Judd and I'm here today on behalf of the city of Boise.

[00:12:17] Speaker 00:
As earlier observed by the district court, the plaintiff, Appellant Tom Fleming, was not constructively discharged in this case.

[00:12:23] Speaker 00:
I appreciate Judge De Alba's questions and comments because they go to the heart of why this case fails and why the district court was correct in granting summary judgment in favor of the city.

[00:12:35] Speaker 00:
I would note that the plaintiff appellant's claims fail for two reasons.

[00:12:38] Speaker 00:
One is, he failed to induce facts sufficient to show a genuine issue of material fact as to his claim of constructive discharge.

[00:12:47] Speaker 00:
Secondarily, he failed to induce facts showing a causal link between any protected activity

[00:12:54] Speaker 00:
and an adverse action.

[00:12:56] Speaker 00:
To Judge Dalbo's point, the adverse actions in this case are nebulous.

[00:13:01] Speaker 00:
At this point, I appreciated counsel's clarification today that the protected activity was three events.

[00:13:09] Speaker 00:
One was that he participated in an interview or an investigation of an officer in August of 2021.

[00:13:17] Speaker 00:
The second was referral of an investigation regarding the chief of police to the Idaho state police in October of 2021.

[00:13:24] Speaker 00:
And the third protected activity he identified was an OPA intake.

[00:13:29] Speaker 00:
When we talk about the OPA as an initial matter, I think it is really important for this court to note that Fleming himself was not a complaining witness.

[00:13:38] Speaker 00:
He was asked to participate in an interview by the director of OPA at the time.

[00:13:43] Speaker 00:
So when we talk about that the city restricted his ability to

[00:13:47] Speaker 00:
have an avenue with which to complain, there's no evidence in the record that he had tried to complain to OPA, to HR.

[00:13:56] Speaker 00:
He was internal affairs himself.

[00:13:59] Speaker 00:
So I think skipping forward a little bit, I struggled with the last comments made by council that for the violation of 2104, this is how the city unreasonably restricted essentially or his protected activity, the denied access to HR.

[00:14:16] Speaker 03:
When you're evaluating a workplace harassment environmental harassment matter aren't you looking at the totality of the circumstances?

[00:14:26] Speaker 00:
Absolutely your honor, and I would submit that's exactly what the district court did he looked at

[00:14:31] Speaker 00:
The allegations by Fleming taken as true that there were these eight hostile incidences over the course of time.

[00:14:37] Speaker 00:
And he found that applying the Ninth Circuit precedent to what it takes to reach that constructive discharge, intolerable burden.

[00:14:45] Speaker 00:
It's a high bar, as this court is well aware.

[00:14:47] Speaker 00:
To reach that, he had to show more.

[00:14:50] Speaker 00:
He had to show aggravating circumstances.

[00:14:52] Speaker 00:
So he looked at the course of conduct over a course of eight months.

[00:14:56] Speaker 00:
He looked at the totality of the circumstances.

[00:14:58] Speaker 00:
And I think that where there's a question or a dispute as to whether or not he considered the totality of circumstances based on a remark he made during oral argument, in oral argument he questioned whether this was really a totality of the circumstances case.

[00:15:14] Speaker 00:
The flip side of that though was that was in the context of argument by

[00:15:18] Speaker 00:
Plaintiff appellant that the court could consider what happened to all of these other people how other individuals felt what other individuals perceived and Judge windmill in that moment said Why why do I get to consider how other individuals felt what they?

[00:15:34] Speaker 00:
experienced because what happened to a different individual did not happen to your client and so the totality of the circumstances as it applies applies to Mr.. Fleming and

[00:15:44] Speaker 00:
not to Mr. Hara or any other individuals that they wanted to talk about.

[00:15:48] Speaker 00:
And I think what the court was concerned about was a sideshow.

[00:15:52] Speaker 00:
This is about Mr. Fleming and the conditions he experienced.

[00:15:56] Speaker 00:
And viewed as a whole, the court absolutely considered the totality of the circumstances in looking at what are the acts complained of?

[00:16:04] Speaker 00:
When did they start?

[00:16:06] Speaker 00:
When did they end?

[00:16:08] Speaker 00:
What in totality was the environment?

[00:16:11] Speaker 00:
And so as we heard again here today, there's a lot of

[00:16:18] Speaker 00:
rhetorical speech about how he felt, what he thought.

[00:16:22] Speaker 00:
There's very little evidence, and the plaintiff appellant doesn't challenge the court's factual findings as to the eight hostile events, none of which constitute an adverse action under either Idaho law or under federal precedent.

[00:16:37] Speaker 01:
Counsel, would you consider Fleming's investigation into Officer Green a protected activity?

[00:16:44] Speaker 00:
Your Honor, I would dispute that it was.

[00:16:45] Speaker 00:
That wasn't fully briefed or argued below, but I would dispute that it was because that was a core function of his job.

[00:16:53] Speaker 00:
If we were in the context of a First Amendment case and you're looking at whether or not it qualifies as protected speech.

[00:16:59] Speaker 00:
If it's a core function of their job and he was doing it as part of his daily duty, conceivably anything that Captain Fleming did would have been a protected activity, because that was his job, to investigate other claims against officers within the department.

[00:17:14] Speaker 00:
And so under that view,

[00:17:16] Speaker 00:
I would say there is no protective activity in that.

[00:17:19] Speaker 00:
For the purposes of argument, however, they can have that one.

[00:17:23] Speaker 00:
They can have absolutely, I think, that participation in the OPA interview as a witness would have qualified as a protected activity.

[00:17:30] Speaker 00:
We don't dispute that.

[00:17:32] Speaker 01:
I do have a factual question for you, because this is kind of where I'm stuck.

[00:17:38] Speaker 01:
What am I to make about the fact that Captain Fleming retired just seven months shy of being able to receive his full benefits?

[00:17:46] Speaker 01:
And let me walk you through my thoughts.

[00:17:48] Speaker 01:
That to me lends credence to this idea that the workplace was so intolerable that I couldn't even wait seven more months before I retired.

[00:17:56] Speaker 01:
And he could have retired with full benefits, but seven months is not that long of an amount of time.

[00:18:02] Speaker 01:
It leads me to believe he was pretty miserable.

[00:18:04] Speaker 01:
And the other facts, as explained anyway, seem like a reasonable jury could find that the conditions were not ideal here.

[00:18:16] Speaker 00:
Your Honor, as to your first point, the record also reflects that he was offered a job at BSU and he had to have a certain amount of time before he could start the job at BSU.

[00:18:25] Speaker 00:
And he told another colleague, it was an opportunity too good to pass up.

[00:18:29] Speaker 00:
So to your point, Your Honor, why wouldn't he have waited the seven months?

[00:18:32] Speaker 00:
He didn't wait the seven months so that he could take a different job, where frankly between his, and this is in the record, his pay under retirement and his new salary exceeded what he was already making.

[00:18:43] Speaker 00:
So he could leave the city and go make more money doing something else.

[00:18:47] Speaker 00:
And so there was both a financial motivation, frankly, to leave, but also a real tangible

[00:18:53] Speaker 00:
benefit to switch to his dream job.

[00:18:56] Speaker 00:
And so that, as to your first question, why would you leave seven months early?

[00:19:00] Speaker 00:
As to the second question, when we look at what his environment was, it does not meet the standard that this court has previously applied in constructive discharge cases.

[00:19:10] Speaker 00:
This is intolerable working conditions.

[00:19:13] Speaker 00:
And when you look at the cases,

[00:19:16] Speaker 00:
As to what is intolerable, I would cite the court to, actually, ironically enough, plaintiffs' counsel relied on these cases, but Wallace, Watson, and Wallace, you've got objectively discriminatory conduct, including failure to consider for promotion, imposing excessive and discriminatory disciplinary action, refusing without justification to approve requests for permission to teach, initiating disciplinary proceedings, threatening

[00:19:46] Speaker 00:
I mean, the list goes on.

[00:19:48] Speaker 00:
There's nine factors noted in Wallace that the court considered as evidence of constructive discharge.

[00:19:54] Speaker 00:
You look at Watson.

[00:19:58] Speaker 00:
Somebody engaged in an interracial marriage.

[00:20:00] Speaker 00:
As soon as that happened, all of a sudden, they got unfavorable reviews.

[00:20:08] Speaker 00:
I think the unfavorable reviews was really kind of the worst, but it was an objective, tangible employment effect, an adverse consequence or adverse employment action.

[00:20:18] Speaker 01:
Counsel, didn't we and Shindrig say that encouraging someone to resign or retire may support an individual's contention that they were constructively discharged?

[00:20:29] Speaker 00:
You did, Your Honor, but I would also note that the evidence in this case is that he was not encouraged to retire.

[00:20:36] Speaker 00:
He was not asked to retire.

[00:20:38] Speaker 00:
I would note, Your Honor, that there were a few offhand comments about, if it gets to be too much for you, contact Percy.

[00:20:45] Speaker 00:
In the context of a professional disagreement, if you don't like it, then you can look at retirement.

[00:20:51] Speaker 00:
He wasn't told specifically, you should go retire right now.

[00:20:55] Speaker 01:
Does it have to be that specific?

[00:20:56] Speaker 01:
I mean, generally in the workplace, I don't know that it is.

[00:20:59] Speaker 01:
I mean, it's kind of like, you don't like it, then get out of here.

[00:21:01] Speaker 00:
Well, I think that's where we get to reasonable versus unreasonable inferences.

[00:21:04] Speaker 00:
The record in this case also shows that retiring at age 50 from Boise Police Department is not uncommon.

[00:21:11] Speaker 00:
And he was 53 at the time.

[00:21:13] Speaker 00:
Some of these conversations came up in the context of succession planning.

[00:21:17] Speaker 00:
How long are you going to be here when he was asked about his age?

[00:21:21] Speaker 00:
So it's not uncommon within the context of the police department culture that once you hit the age of 55,

[00:21:30] Speaker 00:
Those conversations start happening more frequently.

[00:21:32] Speaker 00:
And I would refer the court to the record at 521 that Fleming acknowledged that that is a pretty consistent theme once somebody hits the age of 50.

[00:21:41] Speaker 00:
The two comments about Percy, Your Honor, were, there's two, I believe, Your Honor, and they were in April of 2022.

[00:21:50] Speaker 00:
after which he waited two months to say, I'm retiring.

[00:21:53] Speaker 00:
So when we get to the polling factors in terms of timing, he waited two months after those comments.

[00:21:59] Speaker 00:
And then actually another month, he continued to work after that.

[00:22:02] Speaker 00:
So when we get to consideration of also the timeliness of his retirement, he retired three months after the very last act he complains of was hostile.

[00:22:15] Speaker 00:
And so we've got both a timing issue.

[00:22:19] Speaker 00:
We have a cumulative effect of what really are the bad actions he complains of.

[00:22:24] Speaker 00:
We have a lack of change in working conditions of any kind.

[00:22:28] Speaker 00:
He did not move offices.

[00:22:31] Speaker 00:
He was not demoted.

[00:22:32] Speaker 00:
He did not suffer a cut in pay.

[00:22:35] Speaker 03:
And so I would say that under the let's add in let's add into that the that you had a chief who was hostile to subordinates who used derogatory language and

[00:22:47] Speaker 03:
who attacked an employee who had a disagreement with him and the other things.

[00:22:56] Speaker 03:
Doesn't this all sort of, if you ball it all together, doesn't it raise a question of fact that really is a jury issue?

[00:23:05] Speaker 03:
I'm trying to figure out the line and I have enormous respect for the district judge, but doesn't that all raise a jury issue?

[00:23:15] Speaker 00:
Your Honor, I would submit that under the totality of the circumstances, what the plaintiff wanted to do was try this case and the merits of what happened to other people, not what happened to him.

[00:23:25] Speaker 00:
The analysis about a constructive discharge looks at the objective what a reasonable person in his shoes

[00:23:32] Speaker 00:
feel that it motivated their willing to earn a living, or that it was so horrible.

[00:23:40] Speaker 00:
And so you get into a fact inquiry as to why other people did or didn't leave, or if comments were made to other people.

[00:23:47] Speaker 00:
But when we look at the plaintiff, who is the one who has to show that he suffered an adverse action,

[00:23:52] Speaker 00:
that he was fired or he was left seven months before retirement because this isn't a substantial factor test this is a but for they have to show under the elements of an IPPA that he suffered an adverse action

[00:24:08] Speaker 00:
because he engaged in a protected activity.

[00:24:12] Speaker 00:
And it's not about whether or not he referred out an investigation regarding somebody else, or what happened to somebody else, or how that person felt.

[00:24:22] Speaker 00:
When we talk about the Tim Green incident, and they want to talk about things he said to other people, there's no allegation that the chief said anything to him.

[00:24:31] Speaker 00:
He testified in his deposition, he got mad and he kicked me out of the office.

[00:24:35] Speaker 00:
That's one of his hostile events.

[00:24:37] Speaker 00:
That's not the same thing as what we see in some of these other cases where they say, what happened to you was so bad that any person would have not taken that.

[00:24:48] Speaker 00:
And so if you look at some of the cases, too, they cite, we look at, excuse me, for instance, if we look at Hobbree versus Snow,

[00:25:05] Speaker 00:
which is a case cited by one of the cases they relied on, which is Simmons.

[00:25:09] Speaker 00:
But in Habri, you had a female employee who was sexually harassed over a course of years, physically, emotionally.

[00:25:18] Speaker 00:
It was pervasive.

[00:25:20] Speaker 00:
It was a supervisor.

[00:25:21] Speaker 00:
It was physical with her.

[00:25:24] Speaker 00:
And the district court granted summary judgment, and it was overturned.

[00:25:28] Speaker 00:
And even there, they said, it's a question of whether a jury would find that really that bad.

[00:25:33] Speaker 00:
That's astounding to me, that that would be the standard, that physical touching by a supervisor to somebody else.

[00:25:40] Speaker 00:
Nothing like that happened to Mr. Fleming in this case.

[00:25:43] Speaker 00:
He says it was kind of a gross environment.

[00:25:46] Speaker 00:
It was nobody was happy.

[00:25:49] Speaker 00:
The chief was mean.

[00:25:52] Speaker 00:
But he wasn't mean to Fleming.

[00:25:54] Speaker 00:
And the record doesn't then develop why or what happened to everybody else either.

[00:26:01] Speaker 00:
So we're asked to infer that all of those people, or whomever, left because of the chief.

[00:26:07] Speaker 00:
And the record doesn't get us there.

[00:26:09] Speaker 00:
The record that we have is what happened to Fleming.

[00:26:12] Speaker 00:
And it simply isn't enough.

[00:26:16] Speaker 00:
I would also then go to,

[00:26:20] Speaker 00:
Plaintiff mentioned the aggravating factors that he thinks gets them past the one isolated event standard, and he does the emotional toll on Fleming, the lack of remedies available.

[00:26:34] Speaker 00:
There's no evidence he tried.

[00:26:35] Speaker 00:
To get a remedy in this case and so when they say there's no remedies available OPA was in fact an option for them OPA was not shut down the OPA recommendation was that a third party be hired to investigate the city did that they hired a third party the city later said to OPA redirect things back to HR that was after Mr.. Fleming left

[00:27:00] Speaker 00:
That wasn't even while he was there.

[00:27:01] Speaker 00:
So as long as Plaintiff Pelt was there, he always had an avenue.

[00:27:05] Speaker 00:
He could have gone to OPA.

[00:27:06] Speaker 00:
He didn't.

[00:27:08] Speaker 00:
He could have gone...

[00:27:10] Speaker 00:
I mean, I guess his direct chain up would then be city council at that point.

[00:27:14] Speaker 00:
But having not even tried, it's difficult to conceive of an argument where he was prevented from exercising any of his rights.

[00:27:22] Speaker 00:
And then the systemic interference.

[00:27:24] Speaker 00:
Excuse me, I'm over my time.

[00:27:25] Speaker 00:
I know if I may finish this comment.

[00:27:28] Speaker 00:
When he talks about systemic interference, his one example was green.

[00:27:33] Speaker 00:
that chiefly disagreed with a recommendation they made in the context of an investigation.

[00:27:37] Speaker 00:
That's not systemic.

[00:27:39] Speaker 00:
That is one event.

[00:27:40] Speaker 00:
And so with that, I would stand for any further questions and appreciate your time.

[00:27:47] Speaker 02:
There are no questions.

[00:27:55] Speaker 02:
Just.

[00:27:56] Speaker 02:
OK.

[00:27:56] Speaker 02:
Thank you, counsel.

[00:28:02] Speaker 04:
Thank you, Your Honors.

[00:28:02] Speaker 04:
I'd like to address four points and then, of course, answer any questions that you may have.

[00:28:07] Speaker 04:
One issue that this court needs to address in its opinion is that the definition of adverse action under Idaho's Protection of Public Employees Act is much broader than many of the more typical federal statutes that this court typically deals with.

[00:28:23] Speaker 04:
The definition provided at 2103 as subsection one

[00:28:27] Speaker 04:
It means to discharge, but it also means to threaten or otherwise discriminate against an employee, quote, in any manner, any manner.

[00:28:37] Speaker 04:
And because this is our government that we're talking about, the intent of Idaho's legislature was to prohibit any sort of discrimination, even what opposing counsel would downplay as being minute or just rough language.

[00:28:52] Speaker 04:
It's intended to prevent that as well.

[00:28:55] Speaker 04:
My second point is that the appellant record, the district court did state, which it's

[00:29:01] Speaker 04:
record 42 through 43 that this is not a case where there is a lack of evidence that there may have been statements made that could be viewed as pushing someone to retire.

[00:29:11] Speaker 04:
That acknowledgement requires this case to be presented to the jury.

[00:29:15] Speaker 04:
Opposing counsel stated that we didn't raise below that the officer Tim Green was a protected activity.

[00:29:22] Speaker 04:
I would turn to the record page 436.

[00:29:24] Speaker 04:
It's in our statement of undisputed facts paragraph 13 under the heading protected activities and the Tim Green element was raised below.

[00:29:33] Speaker 04:
And lastly, Judge Orrick, your comments about Judge Windmill and your question about the totality of the circumstances are right on point.

[00:29:40] Speaker 04:
I too, as a former intern of Judge Windmill, hold him in the highest regard, but he's not infallible, and I think that he had it wrong in this case, Your Honor.

[00:29:49] Speaker 04:
Specifically, in the oral hearing,

[00:29:51] Speaker 04:
He specifically rejected this court's standard of the totality of the circumstances.

[00:29:57] Speaker 04:
He said, I really reject the totality of the circumstances standard.

[00:30:01] Speaker 04:
And that's apparent in his decision because he did not acknowledge or address much of the evidence that we put before the court, including those aggravating factors that I've discussed today.

[00:30:12] Speaker 04:
And I just would really like to finish on the importance of our constitutional right to trial by jury.

[00:30:19] Speaker 04:
that this is key to our democracy and that the process matters.

[00:30:24] Speaker 04:
Those legal standards that we put at the top of every brief, they do mean words.

[00:30:29] Speaker 04:
And that even if this panel were to say, if I was in Tom Fleming's shoes, I would not have quit,

[00:30:35] Speaker 04:
I would ask you to still allow this case to go to the jury, because it should be our community that's setting the standards of our government workplaces.

[00:30:43] Speaker 04:
It should be our community that's deciding what is tolerable versus intolerable from our public servants, and that at a time in which our judiciary is at an all-time low, we need to empower our citizens to really take ownership of these decisions of our government, and that you can only do that in a trial by jury.

[00:31:05] Speaker 04:
I would take any questions that this court may have.

[00:31:09] Speaker 02:
No.

[00:31:10] Speaker 04:
All set.

[00:31:12] Speaker 03:
Thank you.

[00:31:13] Speaker 02:
Thank you, Your Honor.

[00:31:24] Speaker 02:
I thank Council on both sides of this interesting case for their arguments that at this point Fleming versus City of Boise is submitted and the advocates will hear from us in due course.

[00:31:52] Speaker 02:
That concludes our arguments.