this is a case where the facts are kind of messy but the the law is pretty clear on this and i'll just point out that the district granted summary judge judge the district court  judgment to the school district based upon causation on all of our counts in specifically under the mcdonnell douglas analysis under the pretext portion  found that we had not shown that there was a question of fact as to preach pretext we ask you with respect to the facebook post ok put aside your every denture your objections to it let's assume it was properly it's every day entry that it could be miscible do you agree that taken alone that it is sufficient reason to terminate an at will employee it depends of which facebook post you're talking about well how about let's take the worst one so let's take the comment that calls the use his superior chuckles the clown with respect to that one let's assume that's all occurred here i work for i work for department i make i put say something derogatory about my boss on facebook i am an at will employee is that a valid business reason for them to fire it may be but i would point out that in the curly case which is why no supreme court case the woman had been writing notes about her coworkers and calling them muffy and buffy in the notes and the court found that there still was a question of fact as to whether that was the reason for the terminate but as i read curley is that if there if there is a valid reason for the terminations and there may be also some other stuff on the side that wouldn't have been valid that is long as there is one valid reason for the terminations the fact you may have other reasons that are bad doesn't doesn't mean that it wasn't a valid terminations i misread curling in that way well i think it's pins on if you have direct evidence of discrimination or only circumstance and here is there's no direct evidence of discrimination is there well i would argue there is on on two points number one when they either in april of two thousand and twelve this was a eight claim in april he mr kerns raised the rent basically from fifty dollars a month to three hundred fifty dollars a month and the reason he said for raising it was because mr barret concern that his disability payments would be reduced which is what is a concern he had repeatedly expressed which was why he wouldn't take full time work so that is an account of an economic consideration not because i don't like this person because he limps type reason so that's him to me to be distinguishable on grounds i think there is a question of fact as to whether he continuously expressed that i can only make a thousand dollars a month i don't think that is supported by the record mr kerns even said when he did it well we just found out that he could only make a thousand a month and because of that we decided to raise right back up to three hundred fifty so it was i thought there was evidence that the reason that he rejected the county is offer of full time work was he was concerned about losing his disability payments know it at the beginning of his employment in two thousand and ten he basically asked for three accommodations because he was disabled one to take part time work no mention of how much he could make another one is is they promise to hire him some help because this has been a full time job for non disabled individuals before and number three they said he would have light duty work in all he would have to do would be call contractors to come do the work and then he and ends up getting fired and one of the reasons and you know this is i think it has to be a mixed motive case because there were multiple reasons for his terminations determination letter but the final reason was you're not doing well in your maintenance duties and you can't change right now there's an entire as i understand it there's no evidence in this record to support that contention has every right to support what the last contention if they did the letter says you're firing you because of the facebook post to make it a shorthand which may well be a valid reason and also because you you you're falling behind in your job your job you're not performing your job very well and the insubordination right insubordination by the way i think there i think there was a lot of evidence of insubordination so to this west one is there any evidence at all in this record  that he wasn't performing his duties satisfactorily not that i'm aware of all of his performance evaluations were great mr kearns even says i didn't have any problem with his performance in till i wrote this letter and says in this deposition he said performing all of the duties and responsibilities that you had assigned and he said correct he was successful except that he was fired for not realize we did that's not such a hostile question i think she was just asking what the recordset years right so in light of that is your argument that this reason for terminations there were three reasons maybe that this reason was pretextual because there's no evidence that he wasn't doing his duties correctly correct at least as a question of do that's my problem let's assume there's no direct evidence of discrimination all we have here is he will he makes a prime aphasia case because he's discriminated we know they come back with reasons two of them are good in one of them isn't just that what i'm thinking out loud what do we do in a case like that then there has to be no question of fact in order grant summary judgment that it was the determining factor in terminating him and they would have done it anyway if no of this other stuff that don yes see that's so but you're getting to the point of trouble and we've got this case and maybe you can help me on it it looks to me that the reason that he gets fired is he gets into in a spitting match what's call with the superintendent if that record seems to be overwhelming about that and then they fire him and they also say something that may not be true and so if i were conclude on this record it is just no way he was going to continue in the job after all these other things incorrectly your job performance has gone down if if that was the case i would agree it wouldn't matter but but that's not i know that's not your case i just i'm trying to get your standing is a legal framework i guess so even if his job performance hadn't gone down in fact why is a complaint that you're not performing up to our standards based on discrimination related disability is that your argument think in his affidavit there or there may be he may contradict himself but that can create an issue material act so if he's performing his duties successfully then it's a pretextual reason but the pretext is we want to fire you because you're to focus on what the district thought about his performance not his own because they're the ones that fired him in if they thought he was not performing up to par because you know because he couldn't climb a ladder and change a light bulb and that has to do with his disability mr burns is can do that is there any evidence that that's what the county thought yeah in the in the letter they just say your performance is declining in a changing light bulbs but that doesn't say that says you're not doing the job for which we hired you and then there has to be some evidence that he was doing the job but they didn't like him because he was disabled and that's where i didn't see it at link that's where m zation comes into play where he says well i knew that he couldn't change the light bulbs because he can't climb a ladder and so that's the connection between his disability and in that portion i think it all comes down to the retaliation he  in march for the first time he brought a letter retaliating is a state law a claim the career the whistleblower retaliation claim and then we have other other evidence of our eighty eight claims also that they're related  but on your on your retaliation claim i would ask you question i understand why the idea claims were right on behalf of mr barrett and in this pair mrs barrett because she's a derivative beneficiary she didn't do any whistle blowing there's no evidence in this record that she engaged in any whistle blowing is that there is not so why does she have a whistle blowing plea well she has a whistleblower claim both under the the van decision it's  idaho supreme court case decision which talks about the requirements of a whistleblower claim and under title i've read the decision tell me why since she didn't do anything right she didn't she didn't touch a wessel right tell me why she has a claim under the whistleblower well that intent of the statute was to protect against adverse employment actions for employees because adverse employment action is good employees are rising out of their disclosure of certain information she did not disclose certain information so you said the judge based his decision on causation you did so you don't get to tell me what whistle blowing caused her to it was mr barrett's whistleblow whistleblowing that got her fired so is that that as i understood that claim it is essentially that that is a while full discharge tort claim which you incorporated into the complaint under under the statute but i can go fire your husband and your children and you know your second cousin to get back atcha that's a tort claim that's correct and that's why we brought up the public policy of idaho it's against public policy to separate the two for a second you agree she doesn't have a statutory claim i think the intent of the statute was to protect what you can't you can't do both you know  either if you have a statutory claim it supersedes the common law tort claim but if you don't have a statutory call and then the statute does anough to demonstrate i know this public policy that you would have a tort claim in that circumstance so which one do you have well it's a belt and suspenders you know if we don't have you have one or the other that's your position ok did you raise a wrongful discharge tort claim in your that were contrary to the record he said the district court said that no one ever said that i told my client to be quiet about it but my client is in his deposition said he told me to be quiet not tell anyone so my client went above his head to the school district  border with a total population of under two thousand people in the entire county and the school district covers the entire county council i'd like to see us start where we left off with mr wessel and that is with respect to mrs barrett and and whistleblower i read the opening brief pages thirty six to thirty nine to encompass both the statutory claim for her and the wrongful discharge and violation of public policy because basically what the what the argument is there is that he made a safety complaint about the propane tank and that was the reason why both of them were fired and then the discussion about why hearst west pretextual actually took up more space than he is and i guess i don't understand why there wouldn't be a tort claim for her if and i know you don't except that there isn't enough factual information here to for him to get past summary judgment but i'd like you to assume for the sake of my question that there's enough evidence of pretext in firing him in retaliation for the propane complaint do you agree or disagree with the proposition that it would be against public policy to fire family members in retaliation for a whistle blowing event i don't believe there is an idaho case law on that i know there's nothing specific but i'd like to understand your position on that proposition i believe that any come along claim would be superseded by the fact the state adopted a specific statute except that so so in your view a family member in my hypothetical i did something whistle blowing and my employer fires my husband my children and my second cousin none of them has a claim because  employees so they don't have a whistleblower claim but they also don't have a tort claim in the employer's free to do that my comment was to the fact they would not have us a whistleblower claim they might have some other as i read the complaint i don't read the complaint as having brought iran from discharge claim of paragraph fifty five very clearly states that if there is a tort claim and as i understand i don't hold law you could have moved to segregate that claim but didn't so the fact that it's in compassed under the statute is not relevant and whether or not they've preserved through the rest of the case is a separate question but the complaint says plaintiffs terminations who employment were also right after alleging a whistleblower claim a common law action that is contrary to the public policy of the state of idaho so they plainly brought a tort claim separate from the whistleblower claim contrary contrary to public policy or a tort claim contrary to public policy in idaho what are the elements of that claim i pose i didn't hear the first part here i was wondering if there is a tort claim i'm not able to give you those elements because the because that was never argued at the lower level i never had to research that and be able to provide an almost an intelligible answer to that question because i don't believe they preserve that why it says mr barrett was terminated for whistle blowing it again i i'm asking you to assume that he was i don't think he was and then it says it's undisputed that mr or mrs bear were terminated connection there's and so throws out the entire whistleblower claim the question i guess i'm interested in is if we were to reinstate the whistleblower claim on the merits with respect to mr barrett doesn't mrs barrett's claim come along why there isn't but rather we've been focusing on the tail maybe not the dog and i would like to hear your thoughts on the whistleblower claim it's not valid but i guess i'm still puzzled about the nature of a derivative whistleblower claim we know they can intervene if ag a claim but i'd like to know if you can also address the elements of a derivative whistleblower claim under idaho law if there is if there is my difficulty is and maybe you can help me with it as i read the idaho cases and you know them better than i it seems to say that if you are fired in relatively close proximity to disclosing the kinds of things covered by the whistleblower statute that there's there's then a question of fact about causation is that a fair reading of the cases i don't believe that that creates a question of fact that may shift the burden under the pretext and then you have to determine whether the in fact there was a valid reason for that terminations but the district court here found there was no causation correct so if we focus on causation for a second if we focus on the district court's ruling isn't it true that under idaho law you can you can get to the jury on causation simply by showing that the firing occurred in relatively close proximity to the whistle blowing activity there may be other reasons th case won't go to the jury because you can demonstrate that that he was fired for a different reason but at least on temp is never a temporal causation link here i believe that would only be a factor that the court would have to consider and wouldn't be the i don't think that that fact alone titles you to get to a jury would you think is that what happened put it differently doesn't require the employer then because there is no derivative as opposed to just creating so that's that well that's what i'm struggling with mcdonnell douglas as we know has a series of burdens i'm not sure i agree can read that into the idaho act with the idaho act as i read it seems to say in the few cases under it that if you you get fired for engaging in protected act if you can if you gauge a protective activity get fired relatively soon thereafter that creates a question of fact for the jury about whether it was in response to the protected activity and the employer can of course argue to the jury that no it wasn't because he was a terrible employee and there are lots of other reasons but i'm not sure that we import the mcdonnell douglas framework into it to let you get out you know at the but i'm maybe in error in my comprehension of it quite frankly as i look at it the real test is whether or not he was ever engaged in any protective act because if he is not doesn't have a whistleblower right plame and there was he was not engaged in a protected act then this other discussion that we're having becomes irrelevant then we go to the school board at some point and say there's a safety hazard in the gym because of this i think it is a boiler protective activity i believe you did not as as this corpse i just graber indicated and in the court case analyzing the organ statute which is verse identical to the idaho statute with regard to whistleblower murder reporting read reporting publicly available information does not cost to protect a divorce publicly available information to the public know there was a problem with the propane tank absolutely the board if you look at the at the record the board the school board knew of the propane leak and the issue as early as january of two thousand and twelve what they've learned from that they learned that both from themselves and from the yes but what source there are there are one hundred regular basis they they were aware of this situation and mr barrett by his own testimony indicates in fact they were so aware of it that they had already called on having different companies come out and take a look at the problem and start to get bids on the problem the problem and and mister barrett by his own testimony indicates that he kerns about the problem initially when our guess i'm confused i believe that is a confusion what mr barrett told mr kerns at that time was that it had pursu the instructions the school board had given to mr kerns to go ahead and begin to get bid on what it was going to cost and what it was going to take to fix this remedy so he's the one who told currents i thought that's what the record show not in a legal state it was not up to code and it was a violation of law and that is that's the first time or was there some information before the out a violation of law associated with the tank the marsh discussion the the board already knew that the tank was leaking and the tank needed be repaired and that it was creating a hazard question i think it's what i'm interested in to is at the board been previously told that somebody had looked at this and found that it was in violation of law the local inspector well any no there is inspector somebody came and somebody came and said this was in violation of law correct one of the contract one of the local you know people who came out and did a review and said i've looked at this and it's in violation of law correct did the board know that before them i believe they did that is appears to be in the affidavit of the chairman of the we have the affidavit seems to say we knew there was a problem but is there any is there any direct evidence that the board  knew there was a legal violation so that's your parents as that kearns told him to keep quiet about it that's his testimony right his testimony was that is for the effect that barrett told him to keep quiet about mr kearney about the cost it was going to take to repair not to keep quiet with regard to the fact there was a leak and that the leak needed to be repaired i think that may have been mr  testimony but i think mr barrett's testimony was to the contrary that that kearns told him to keep quiet about the problem and for purposes of summary judgment we have to take that as a fact clear that people have a first learned put aside for second knew for some period of time that there was a problem with the propane tank but at some point a contractor came out and looked at it and said to mr barrett yes there is a problem and it violates the law at least that's what he says and my question is the one i was trying to ask before is when was the first time that the school board learned that somebody had said it was in violation of the school board believed that was no i don't tell me what they believe but i just want to know when they were the worst because what you said is you can't i use a judge graber prior opinion said if you're disclosing already publicly available information then it may not be whistleblowing so the information i'm focusing on is that a contractor had determined that this violated the law is not true that the school board learned that from mr barrett i don't believe so your honor but honestly the record is devoid  the school board believed that they knew about that in january of two thousand and twelve but whether they only they think they knew about they certainly knew about the problem and they knew that created a dangerous condition for their students and that's why they were concerned about it and that's why they started to hire people to go out and review it and to and to address to address the problem whether they knew it was a violation of building code i can't answer that thank you counsel your exceeded your time really understand your apply and by so it says while the burden shifting analysis is applicable at trial it was error for the district court to apply it at the summary judgment stage so does it apply at the summary judgment douglas burton shifting analysis or do we just look at whether your client created  case you look at it just basically the previous case and curley also says and then the other stuff becomes a defense that the that the defendant can put on to the jury and there may be burdens of persuasion attached to it but not burdens of production right but it does say that causation is a question of fact in almost all cases in that one now regarding the violation of public policy page eight and nine of the court's decision is all about public policy i'm sorry yeah that's pages eighty nine of the record and so we did bring that up and we did preserve it in the district court go through the steps but found it against us on that issue now as to what was the first time that the school district found out about a violation of law in the building code for the first time that came in in a letter sent to ryan barrett from my coleman that sermon electric it's page three o two of the record that's the first time that we knew that there was a safety issue and a code violation you know people had smelled propane before that showed it to mr kerns and mr kerns agrees that that happened in his deposition in mr curran said be quiet about this we don't have the money and then mr barrett took it to the school board and gave to the school board