Fleming v. City of Boise

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 7, 2025
• Docket: 24-7100
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 7 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THOMAS RAY FLEMING, No. 24-7100 D.C. No. Plaintiff - Appellant, 1:22-cv-00519-BLW-CWD v. MEMORANDUM* CITY OF BOISE, a municipality and/or political subdivision of the State of Idaho,

Defendant - Appellee.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding

Argued and Submitted September 16, 2025 Seattle, Washington

Before: GOULD and DE ALBA, Circuit Judges, and ORRICK, District Judge. **

Thomas Fleming appeals the district court’s grant of summary judgment to

the City of Boise (“the City”) on his constructive discharge claim under the Idaho

Protection of Public Employees Act (“IPPEA”). We “review de novo a district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. court’s grant of summary judgment.” Montero v. AGCO Corp., 192 F.3d 856, 860

(9th Cir. 1999). We “must determine whether there are any genuine issues of

material fact and whether the district court correctly applied the relevant

substantive law.” Id. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

reverse the district court’s grant of summary judgment on Fleming’s constructive

discharge claim under the IPPEA and remand this case for further proceedings

consistent with this disposition.

The IPPEA “seeks to protect the integrity of the 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.” Patterson v. State Dept. of Health & Welfare, 256 P.3d 718, 724

(Idaho 2011) (citation and quotation marks omitted). “To prevail in an action”

under the IPPEA, Fleming must establish that he “suffered an adverse action

because” he engaged, or intended to engage, in whistleblower activity. I.C. § 6–

2105(4). “The term ‘adverse action’ includes the discharge of a public employee.”

Wright v. Ada County, 376 P.3d 58, 63 (Idaho 2016) (disapproved on other

grounds by Eller v. Idaho State Police, 443 P.3d 161 (Idaho 2019)).

“Under the constructive discharge doctrine, an employee’s reasonable

decision to resign because of unendurable working conditions is assimilated to a

formal discharge for remedial purposes.” Pennsylvania State Police v. Suders, 542

2 24-7100 U.S. 129, 141 (2004) (citation omitted). “Where the alleged adverse action is a

constructive discharge, a plaintiff must prove that ‘working conditions became so

intolerable that a reasonable person in the employee's position would have felt

compelled to resign.’” Patterson, 256 P.3d at 725 (quoting Waterman v.

Nationwide Mut. Ins. Co., 201 P.3d 640, 645 (Idaho 2009)) (alterations accepted).

“Th[e] test establishes an objective standard; the plaintiff need not show that

the employer subjectively intended to force the employee to resign.” Watson v.

Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987). Though the question of

whether a constructive discharge occurred is typically a jury question, generally, “a

single isolated instance of employment discrimination is insufficient as a matter of

law to support a finding of constructive discharge.” Id. (citation and quotation

marks omitted). Instead, “[i]n order to prevail, a plaintiff alleging a constructive

discharge must show some aggravating factors, such as a continuous pattern of

discriminatory treatment.” Wallace v. City of San Diego, 479 F.3d 616, 626 (9th

Cir. 2007) (citation and quotation marks omitted). Demotions, pay cuts,

unwarranted disciplinary actions, and encouragement to “resign or retire” may

support the contention that an individual was constructively discharged. Schnidrig

v. Columbia Mach., Inc., 80 F.3d 1406, 1412 (9th Cir. 1996) (emphasis added).

We must look at the “totality of the circumstances” when examining a plaintiff’s

3 24-7100 constructive discharge claim. Wallace, 479 F.3d at 625 (citing Watson, 823 F.2d at

361).

Here, Fleming argues that his treatment at the hands of Police Chief Ryan

Lee (“Chief Lee”), along with the environment at the Boise Police Department

(“BPD”) that Chief Lee cultivated, support Fleming’s claim that he was

constructively discharged because he engaged in whistleblower activity. We

agree.

Fleming provided evidence that his relationship with Chief Lee changed for

the worse after Fleming investigated an officer who was involved in an off-duty

incident. Their relationship deteriorated further when Fleming contacted an

outside law enforcement agency to investigate a complaint made against Chief

Lee. Chief Lee started limiting his interactions with Fleming. Chief Lee also

began to repeatedly question Fleming about the latter’s retirement after their

relationship soured. While this was happening, Chief Lee was involved in

numerous incidents with other employees, which the Office of Police

Accountability (“the OPA”) documented after some of these employees

complained about Chief Lee’s behavior. In the OPA report, Chief Lee was

accused of, inter alia, retaliating against subordinates over disputes regarding BPD

policy, using demeaning language against employees, and shielding individuals

that he had a personal relationship with from discipline. Though Fleming went

4 24-7100 through the appropriate governmental channels to report Chief Lee’s behavior, his

reports went nowhere. Chief Lee was able to retain his position and suffered no

discernable consequences for his alleged transgressions. Fleming and his

colleagues were left to fend for themselves against a boss who seemed to value

loyalty above all else. Whether a reasonable person would find these working

conditions so intolerable that he would feel compelled to resign presents a

quintessential question of fact.

REVERSED AND REMANDED.

5 24-7100