Teresa L. Phelps v. CITY OF PARMA, Idaho

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERESA L. PHELPS,
Plaintiff-Appellant,
v.
CITY OF PARMA, Idaho; CRAIG
TELFORD, individually and as Mayor of
the City of Parma; ALBERT ERICKSON,
individually and as Chief of Police, City of
Parma; NATHAN LEIGH, individually and
as Council Member, City of Parma; TOM
SMITH, individually and as Council
Member, City of Parma; ONEY EGUIA,
individually and as Council Member, City of
Parma; ANGIE LEE, individually and as
Council Member, City of Parma,
Defendants-Appellees.
No. 16-35278
D.C. No.
1:14-cv-00085-EJL-REB
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted December 7, 2017
Seattle, Washington
Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Teresa Phelps appeals the adverse summary judgment of her action under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and Idaho
Protection of Public Employees Act (“Whistleblower Act”), Idaho Code Ann. § 6-
2101 et seq. Phelps alleges she was retaliated against by the City of Parma, the
Mayor, the Chief of Police, and four City Council members (collectively “the
City”) for voicing purported FLSA violations in connection with the police
department’s payroll. We have jurisdiction under 28 U.S.C. § 1291, and affirm in
part and reverse in part.
1. The district court properly granted summary judgment for the City on
Phelps’s FLSA claim after concluding Phelps had not engaged in protected
conduct. See 29 U.S.C. § 215(a)(3); Rosenfield v. GlobalTranz Enters., Inc., 811
F.3d 282, 284 (9th Cir. 2015), cert. denied, 137 S. Ct. 85 (2016). To constitute
protected conduct under the FLSA’s anti-retaliation provision, “[a] complaint must
be sufficiently clear and detailed for a reasonable employer to understand it, in
light of both content and context, as an assertion of rights protected by the statute
and a call for their protection.” Rosenfield, 811 F.3d at 284 (quoting Kasten v.
Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011)).
The City did not have fair notice that Phelps’s reports could lead to a lawsuit
under the FLSA. Phelps understood she was protecting the City, and the Mayor
had told her to correct the payroll issue. Because the City “expect[ed her] to voice

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work-related concerns and to suggest changes in policy to [her] superiors,” the
district court correctly dismissed Phelps’s FLSA claim on the ground that the City
reasonably did not understand her to be raising a “complaint” against it. Id. at 286.
2. Phelps produced sufficient evidence of retaliation to raise a triable issue
of fact on her Idaho Whistleblower Act claim. See Idaho Code Ann. § 6-2104(1);
Summers v. City of McCall, 84 F. Supp. 3d 1126, 1138 (D. Idaho 2015). Phelps
testified: “When I asked the Mayor if the real reason I did not get a raise is
because the Mayor was mad at me for questioning the lawfulness of everything
that occurred over the past several months, the answer was ‘yes.’” This allegation
is direct evidence of retaliation sufficient to survive summary judgment. Godwin
v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998), as amended (Aug. 31,
1998). The district court therefore erred in dismissing Phelps’s Whistleblower Act
claim as a matter of law.
Each party shall bear its own costs on appeal.
AFFIRMED in part; REVERSED in part.

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