Orloff v. United Parcel Service, Inc.

FILED
NOT FOR PUBLICATION JUL 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT ORLOFF, an individual No. 10-35900
Plaintiff - Appellant, D.C. No. 1:07-cv-00509-EJL-
CWD
and
PAUL GOOCH and DAREL MEMORANDUM *
HARDENBROOK, individuals,
Plaintiffs,
v.
UNITED PARCEL SERVICE, INC.,
Delaware corporation doing business in
the State of Idaho,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted May 7, 2012
Seattle, Washington
Before: GOULD, BYBEE, and BEA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Robert Orloff appeals the district court’s grant of summary judgment for
United Parcel Service (“UPS”) on Orloff’s claim of wrongful demotion in violation
of Idaho public policy, finding that he did not engage in any conduct bringing him
within the public policy exception to the at-will employment doctrine. Orloff also
appeals the magistrate judge’s denial of leave to amend his complaint to add a
claim for punitive damages. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Idaho recognizes a narrow exception to the at-will doctrine “where the
employer’s motivation for the termination contravenes public policy.” Bollinger v.
Fall River Rural Elec. Co-Op, 272 P.3d 1263, 1271 (Idaho 2012). This exception
is triggered, however, only when the employee “engage[s] in some protected
activity,” id., including “(1) refus[ing] to commit an unlawful act; (2) perform[ing]
an important public obligation; or (3) exercis[ing] certain rights or privileges,”
Thomas v. Med. Ctr. Physicians, P.A., 61 P.3d 557, 565 (Idaho 2002). Whether the
employee engaged in a “protected activity” is a question of law decided by the
court. Bollinger, 272 P.3d at 1271. The court must first determine if there is a
public policy sufficient to create an exception to the employer’s right to terminate
an at-will employee. Thomas, 61 P.3d at 565. And second, the court must
determine whether the employee “acted in a manner sufficiently in furtherance of
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that policy.” Id.; see also Bollinger, 272 P.3d at 1271. Only after an affirmative
finding of these two factors will the question of employer motivation be sent to the
jury. Bollinger, 272 P.3d at 1271.
Orloff claims that he was demoted for failing to prevent his subordinates
from reporting unlawful activity, actions of which he was generally unaware. He
contends that he thus qualifies for the public policy exception because it protects
employees from actions by employers that are motivated by reasons contravening
Idaho public policy. Even if Orloff’s characterization is correct, he still does not
qualify for the public policy exception because the Idaho Supreme Court has made
clear that the initial trigger for the exception is the protectable action by the
employee whose employment was adversely affected, not the bad motivation of the
employer. See, e.g., Thomas, 61 P.3d at 565.
The district court found that although there is a protectable public policy in
favor of reporting violations of legal requirements, Orloff did not know of his
subordinates’ reports and did not otherwise engage in any protected behavior. The
court concluded that Orloff’s conduct, or lack thereof, did not put him within the
public policy exception. Because Orloff did not engage in any action in
furtherance of any important public policy, the district court did not err. The
district court also correctly found that “[t]here is no public policy precluding UPS
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from taking employment action against a supervisor for failing to stay informed of
their subordinates [sic] concerns or conduct.” Therefore, the district court properly
granted UPS’s motion for summary judgment.
Because summary judgment was proper, Orloff’s appeal of the magistrate’s
failure to grant leave to amend is moot.
AFFIRMED.
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