fifteen eighty three theresa phelps was the city clerk for the city of parma for twenty two years she was annually appointed by the city council until two thousand and fourteen when she was not appointed the facts surrounding this case really in many respects involve application of this court's recent decision in rosenfeld field versus global terms in which this court basically reviewed the standard what was the what was the rule that was going to be followed in determining when a person was protected under the and i retaliate statute the what this court did was it looked at some previous other my apologies no this circumstance under which the rosenfield case became of significance was at the time that the lower court ruled in the summer judge a motion rosenfield had not been decided it was several months determination that in fact a summary judgment should be granted on or the retaliation claim doesn't feel basically dealt with a situation where the whistleblower the putative was the bore was not responsible for the protected activity here it seems pretty clear that ms phelps says the city clerk's last city treasurer was responsible for processing the payroll and determining who should get how much for the hours that the police officers work your honor i would disagree with that if you look at her job description i mean the mayor signed the paychecks but she actually looked at the ticket the testimony during deposition was that the various departments would submit their payroll numbers and she was told to pay him no matter what was of the time records but she processed the payroll the question here is whether or not  the payroll was properly computed it was that it was computerized hours that were work that there were reported right of the computerized if she's not the person responsible for for processing the payroll who is it administrative function is the way that the job description goes and it's also the way she testified her testimony i read her deposition and her testimony was that she brought this matter to the attention of the the mayor  shouldn't we consider unlike in rosenfield why shouldn't we consider ms phelps here to be the primary person responsible for seeing that the city complied with the fair labor standards act well i believe your honor that if you look at the rosenfield case we're really talking about a manager position as opposed to just a function and if you look at her she is the duly appointed clerk and treasurer for what that city apartment i take it is two thousand and sixty six people as of two thousand and fourteen sense of was oh there are too many officials in the city of par but there's something like four times the mayor said eleven or twelve full time employees depending on whether they had the kid during the summer who work for the street department yes so and it was ms phelps who spent all the time and effort going both the council the mayor the city attorney and ultimately the i don't apartment of labor to try and figure out the answers to bring the city into compliance with the fair labor standards that i think if you look a little deeper what you find is that she was directed by the mayor to go find the answers the mayor told her fix it let's let's make sure we're in compliance and then left it but let me ask you from a slightly different perspective what is it in the record which would show that she was an advocate for the victims as opposed to simply serving as the compliance officer for the protesting it in against the city for its violation of the f l s you know i believe her testimony was that she wanted to make certain that these police officers got got the pay that was due them they weren't getting the overtime they were supposed to get and that she was on that particular issue she was in fact advocating on their behalf but she was doing it simply as it was part of her job was it not we contend that was not part of her job that maintaining compliance was not part of her job her job may have been to process payroll but it had nothing to do with mr not actually complying with  the position that she took piece of it chief when he complained on behalf of the officers that they weren't making as much money as they had been before as a result of the changes that she recommended be made to the city council i think i believe your honor that the that doesn't sound like the role of an advocate well i think that all she was doing was administering what she learned was the difference between using the  sixty hundred sixty our hundred number it was the one seventy one and it was a mathematical computation of but i thought her testimony was you know i know that the chief didn't like it because he made what eleven or thirteen thousand dollars less as a result of the change but he didn't understand the ways in our laws the way that i do isn't that what she said her there there are some testimony that yes but i think if you look you're going to find that her s responsibility for the the actual interpretation of the law she was looking down the long term and for she does she seem to have some pretty strong feelings about the direction that that she was given as to whether or not that was complying with the statute right she had some strong feelings about it yes right ok and those strong feelings alternately resulted in the city council and the mayor directing her to do it in a certain way she believed that the original directions were incorrect or an accurate and then she wanted something in writing and so the city attorney said ok do you need some water you want to get on city attorney said you know this is the way it needs to be done and then ultimately i guess there was an executive session of the council where they said do it this way there was a directive to her yes there were at the council i've got a question of the whistle accurate what is your argument that there was sufficient showing of pretext what what is the evidence he had said that you're not getting a raise and she said this is because of my my activities involving the payroll and he said yes and is that sufficient direct evidence of pretext  as i understand the record is that at some point she was taking positions that were not f l s a violation and there were difficulties in getting her to do what the council wanted her to do and then the chief i guess made a big present ation to the council about the unhappiness of the police officers with the positions that she had been taking so why wouldn't that be a legitimate reason for an employer to say you know what the way you handle this pay issue was so poorly done we're not going to give you a raise this year and why is that the that's the genesis of the particular problem up until that time but it's not quite that i guess the concern i have with your answer is it's not clear at explanation of retaliation for conduct that the city was engaged in that violated the statute when the mayor had told her bring us into compliance with the statute and then there were issues over other matters of concern related to payroll including the what do we do we do this on one hundred sixty hour basis do we do it hundred seventy one hour basis how do we compute that hourly wage of the police officers that didn't have anything to do with the initial concern which was we were paying them straight time for every hour they worked even though it was over some of them were over right but there were there were two other issues that were related to the fair labor standards act that that she also complained about which one of which was the use of holiday holiday pay how that was paid and the use of the issue there was that in computing they don't the number of hours worked in a twenty eight day period they were counting their sick leave accumulated sick leave and vacation time as if they had been worked as opposed to in essence they were the city was more generous to the officers than they should have been because they should have been making them work each and every hour of the either hundred sixty or one hundred seventy one hours in a twenty eight day period right there when there was that issue but that also a question about is there a prime aphasia case here of of entitlement to whistleblower protection protected activity from based simply on the mayor's statement the reason you get a pay raise was because of your the way you handled the pay issue there were all there were different compounds to the pay issue only one of which was a true f l s a violation which was they weren't paying overtime  rosenfield and so those two cases establish you would agree that i guess the the central issue on that front is whether f l s a compliance issues were within her job duties yes i would and i guess why isn't there at least  disputed fact mainly because there's no it's it's her conclusory statement in her deposition to say i wasn't responsible for f l a so you know i mean come on council you can look at her job description it's quite detailed and there's nothing in there about f l say compliance issues right specifically in her job description no but when you look at the administrative functions as city clerk and see treasurer in the city treasurer in the statute specifically delineates t treasurer sponsible for to act in to protect the financial interest in the property interests of the city and so ensuring f l s a compliance would be easily another saying why why couldn't a reasonable jury listen to all the evidence look at the job description say actually not she's not a lawyer certainly i don't think she has any training in the requirements right that's why she was going to the city attorney i think and seeking legal advice i don't have a college degree she is the sole person within the city at least in the first level whose job it is to make sure that the city is complying with this quite complicated set of legal or crimes such as strikes me as maybe maybe you're right but why couldn't a jury look at this and say actually not well i think you're on to the point i would probably i would make to that is that it's not that you're a definitive f l s a compliance officer it's that in the scope of your employment i mean she obviously understood black the having more than four officers invoked the protections of the f l a say in this context and she did that independently of anything else based on her years of experience as the city clerk and city treasure so i understand that by a specifically she was not the f s a compliance officer or wasn't in her job description her experience and and her conduct in not only pointing out and identifying the issue but then later taking steps in direct contravention to the directions given to her by the mayor and the city attorney demonstrate that she if not in her job description she believed that she was the f l s a compliance officer does it or does it just  mean that somebody rightly or wrongly and it sounds like here maybe wrongly in some respects somebody has come to the conclusion that the law requires one thing and they're feeling like a you my my boss you're directing me to do something that i'm going to be breaking the law if i have to do this i kind of like some written assurance that i'm not going to get blamed for this later that's consistent i grant you that's consistent with your theory but isn't it also consistent with somebody who just may i think are spot of the problem it's not it's not my responsibility to deal with this but i want to bring it to the attention of my superiors and now you know i'm being retaliated against for that i think your honor with with the way that the city interprets cast and rosenfeld is that you don't it doesn't require when you look at the context of everything that she's doing that it's not a reasonable inference that she didn't believe that she was under f l a c that she wasn't responsible for f l a say in her duties and  doing payroll and in the conduct that she actually took i don't i don't think it's a reasonable inference to believe that she didn't i have to tell me if i miss considering your position but i think to prefer you to prevail you have to take the position that basically if peril is in your daily work and you raise some concern about a fellow say compliance that's going to be deemed to be part of your job response or its responsibilities whether it's in your job description or not whether you have any training on it or not because that's all i see going on here well i think you're on to the important points that kasten rosenfeld both established with it was that this needs to be a case by case analysis rosenfeld's probably the best example of that because you have somebody who the court says we would assume as you said that somebody who deals with payroll would be have f l s a compliance as part of their daily work and that they would be doing that but in this specific instance her supervisor directly told her you have nothing to do with that with with f l s a you  know the fact that she raised these issues created immediate friction and and and problems with her supervisor and so it was court rosenfeld almost made it they they almost establish what you say inference that you're hypothesizing here is that as well if you're if you have payroll you're kind of assumed to be a manager with f l s a compliance issues in less there's some direct evidence that you don't and here is as was pointed out and is clear in the record there is no evidence that anybody else in the city had f l s a compliance issues even the city attorney when you look at the statute or this city ordinance that deals with the city attorney the city attorneys only to be consulted on legal and so i understand your question i mean change or your position that would be or that would be our position on that what's your view on if you if you don't have more to say on f l say retaliation on the state law claim what's your view on whether state or federal law governs the just the standard that we assess as to how much evidence of protection need to get past summary judgment is that a state law governs issue or federal government will and i do hope it's an interesting it's an interesting question and i'd hope because the state law and curl which is state law case determined that to just cut to a summary judgment for a whistleblower action is almost impossible right and so and what's been interesting about idaho is that in the federal courts they've looked at it as a procedural issue and so in dealing with that specific question in federal court summary judgment is a political and whistleblower actions when they're looking at state whistleblower actions because they apply the mcdonnell douglas  issue as a as a procedural question and so in dealing with a federal court looking at a procedural issue that is how idaho is kind of come down on this so that that's the law of the land in idaho at this point and so at that so we would apply the mcdonnell douglas burden shifting and the a political case law to that when we're looking at evidence of retaliation and so we would be you're saying i'm sorry i got a little lost at the end there so we're saying we would ignore the idaho state cases not we know the standard they articulate doesn't govern in federal court is what we're saying for summary judgment per summary judgment the standard analysis and so because it's a procedural question as to what standard is used at that point then the federal courts have taken it that that question means that they apply mcdonnell douglas and not the idaho court case of curley because it's it's procedural and not substantive ok well let's even assuming let's say that the federal standard less favorable for your opponent standard applies why isn't the direct evidence well that's kind a fair way to frame it why isn't the american legion or ledge statement to you to miss phelps why isn't that enough combined with the rest of the evidence i would actually argue your honor that that statement is not direct evidence believe proves the fact of retaliation without inference or presumption and in this case the statement was specifically made in the records in page one thirty one miss phelps stated to the mayor it you know that these issues that the lack of a pay raise it is because of the police department and the problem with payroll you're mad at me for this and he answered yeah and so the issue with that is that as was but there's a second statement that's the one that i agree with you that one maybe could read either way but there's a second statement that's more definitive maybe you know i thought that was the only statement there was that issue your honor i think i'll have to see if i can start to miss that but i thought that was the only statement that we were talking about  t regardless if in this being if this is the only statement the reason why it is not direct evidence is because of these other issues with past the initial f l s a issue questioning the lack of overtime pay there are other subsequent issues that dovetail more with the claudio good toy case that was cited in rosenfield and that's from the first circuit and in that case it was summer instance where an initial legitimate f l s a complaint or issue was was raised but then afterwards the employee defied lawful directives to comply with what was established and so this statement alone it is unclear without further inference or presumption what miss phelps was referencing or what the mayor was referencing in mayor's deposition testimony he specifically stated that the problems he had with payroll was this failure to comply with lawful directives moving forward and so  i would argue that this statement it is arguably indirect evidence of or tell a story motive but when you look at the mcdonnell douglas burton shifting analysis and was required for showing a pretext the city has established  multiple evidences of other employment issues and that and that those were the basis behind her not receiving the pay raise it in going back one quick point i'd like to make about the functions create her or her responsibility in in managerial managing in managing the issues and the affairs of an organization and that is in addition issue why nothing for ok very well the case just argued is submitted the last case on the briefs our prior ranches vs kaplan specialty insurance company is submitted on the brief some will be a german telephone morning