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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 38248

SUZETTE Y. BOLLINGER,

 Plaintiff-Appellant,

v.

FALL RIVER RURAL ELECTRIC 

COOPERATIVE, INC., an Idaho 

corporation,

 Defendant-Respondent,

and

BRYAN CASE, LARRY HAMILTON and 

DOES 1-5,

 Defendants.

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Boise, January 2012 Term

2012 Opinion No. 36

Filed: March 1, 2012

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Seventh Judicial District of the State of 

Idaho, Fremont County. Hon. Darren B. Simpson, District Judge.

The judgment of the district court is affirmed.

Cox, Ohman & Brandstetter, Chtd., Idaho Falls, for appellant. John M. Ohman 

argued.

Rigby, Andrus & Rigby, Rexburg, and Ater Wynne LLP, Portland, Oregon, for 

respondent. Lori Irish Bauman argued.

_____________________

J. JONES, Justice.

This appeal arises from Fall River Rural Electric Cooperative, Inc.’s termination of an 

employee, Suzette Bollinger. Bollinger appeals the district court’s grant of summary judgment to 

Fall River on all of her claims. Because we find that Bollinger was an at-will employee at the time 

of her discharge and Fall River breached no contractual or tort duty to her in terminating her 

employment, we affirm.
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I.

FACTS AND PROCEDURAL HISTORY

Fall River hired Bollinger to work as a cashier and receptionist at its Ashton headquarters 

in October 1988. She was promoted to the position of Energy Auditor in 1993 and also assumed

the position of Member Services Representative in 2006. She continued in those positions until 

February 2008, when she assumed the position of Safety & Loss/Facility Director. Bollinger’s

employment with Fall River was terminated in July 2009. Bollinger’s performance was 

satisfactory at all times, and it is undisputed that her discharge was without cause.

Although Bollinger alleged in her Complaint that she signed an employment contract at the 

time of her hiring, she failed to produce that contract or any evidence of its contents. Fall River’s 

termination policy changed several times throughout Bollinger’s employment. At the time of her 

hire in 1988, Fall River had a “for-cause” termination policy for regular employees, with an 

exception for layoffs due to a lack of work. Fall River also maintained an “Employee Seniority” 

policy, adopted in 1977, which provided that employees would be given preference for 

employment seniority with Fall River in regard to “promotions, demotions, transfers, lay-offs and 

recalls.”1

 In October 2004, Fall River adopted a “Work Standards and Personal Conduct Policy,” 

which detailed the Cooperative’s disciplinary policy and stated that “[e]mployment with the 

Cooperative is voluntary and may be terminated by the employee or the Cooperative at any time 

for any lawful reason.” The 2004 policy expressly superseded any prior conflicting policy. The 

record is unclear how this policy was distributed and whether Bollinger received notice of it, but 

her affidavit shows that she was generally aware of Fall River’s employment policies.

In March 2009, Fall River adopted an “Employment-At-Will” policy, which provided:

All employees who do not have a separate, individual written employment contract 

for a specific fixed term of employment are employed at the will of the company 

and may be terminated by the company at any time, for any reason, with or without 

notice, except as prohibited by law or the express provisions of any applicable labor 

agreement. Any contract or agreement that specifies a fixed term of employment 

must be approved by the board of directors and signed by the president [or] general 

manager of the company.

 

The 2009 policy also provided:

 1 Fall River maintained a seniority list along with this policy, and Bollinger was number 26 on the list in 2004. At 

her deposition, she claimed that she was number 18 on the list by the time of her termination.
3

Nothing contained in this manual, employee handbooks, employment applications, 

Cooperative memoranda, or other materials provided to employees in connection 

with their employment require the Cooperative to have just cause in order to 

terminate any employee at any time or for any reason. Provided, however, that the 

Cooperative will not terminate any employee for reasons that violate state or federal 

law, or the express provisions of any applicable labor agreement. 

The 2009 policy also expressly superseded any prior conflicting policy. On April 6, 2009, Fall 

River distributed this policy to all employees via email, and Bollinger admits that she received that 

email.

In 2007, Fall River created the position of Safety & Loss/Facility Director to oversee safety 

programs and report to the Operations Manager and promoted Bollinger to that position on 

February 28, 2008. Bollinger’s duties in that position involved implementing and carrying out 

state and federal laws and regulations, including conducting monthly safety meetings, overseeing 

safety programs required by the Occupational Safety and Health Administration (OSHA), 

maintaining safety compliance records, following up on accident investigations, purchasing safety 

equipment, and performing safety and compliance inspections. Bollinger was also responsible for 

reporting to Fall River’s management any failure to comply with an applicable safety law, rule, or 

regulation.

According to Bollinger, Fall River General Manager Bryan Case refused to take measures 

to remedy safety compliance issues Bollinger brought to his attention, ignored requirements for 

equipment, and became hostile toward her.2

 According to Case, Fall River took remedial action on 

most safety issues raised by Bollinger, although admittedly not as quickly as Bollinger preferred. 

According to Case, Fall River spent more on safety in 2009 than any recent year. Although she 

 2 Specifically, Bollinger testified in her deposition that as part of her job duties, she raised several safety issues to 

Case and others, but the record is unclear as to whether and to what extent her suggestions were actually met with 

adversity. First, she was concerned when a new budget failed to provide money for protective clothing she believed 

was legally mandated by the National Electrical Safety Code and discussed the situation with Operations Manager 

Larry Hamilton, who also realized the need. By March 2009, funding was supplied for the minimum amount of 

clothing. Second, she was informed by Fall River’s insurer about Fall River’s irregular fire extinguisher inspection, 

improper railing at one of Fall River’s offices, and damaged stairs at another Fall River location. She relayed this 

message to Fall River management and apparently had “heated discussion[s]” with Case about costs associated with 

the fire extinguisher and railing issues. She subsequently conducted a spot check of the extinguishers and was 

waiting for a less-expensive bid on the railing when she was discharged. Third, Bollinger made an “official 

recommendation” to Fall River that employees should wear steel-toed boots, which was not implemented because 

Fall River already had hard metal protective coverings for boots in its warehouse—although they were awkward for 

employees to wear. Finally, there is some suggestion in Bollinger’s deposition of an oil spill that occurred in May 

2009, which Bollinger believed was not timely reported as required by law. However, it is unclear what part, if any, 

Bollinger had in raising this issue with her superiors.
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testified that she kept notes on the alleged safety violations to protect herself, Bollinger never 

reported or threatened to report any safety issues at Fall River to OSHA or any other regulatory 

authority. 

On July 29, 2009, Bollinger was called into a meeting with Case and others and told that 

her position had been eliminated and her employment with Fall River had been terminated. She 

was given a severance agreement to take home and review, escorted to her office, and told to 

gather her personal items. She was given thirty minutes to do so, and two superiors helped box her 

belongings. According to Bollinger, she felt rushed and the superiors told her to hurry because 

they had a meeting to attend. She was offered a ride home but declined and was later given at least 

two letters of recommendation from her superiors at Fall River.

According to Fall River, Bollinger’s termination was part of a larger reduction in workforce 

to address budgetary concerns related to the recession. Case’s affidavit pointed out that on May 

11, 2009, Fall River offered an early retirement package to certain senior employees, five of whom

chose to participate. Subsequently, Case recommended to Fall River’s Board of Directors the 

elimination of five additional positions, one of which was Bollinger’s, and that recommendation 

was approved on July 27, 2009. Bollinger’s position was reabsorbed by the Operations Manager, 

who previously oversaw and administered Fall River’s safety programs. According to Bollinger,

the minutes of the Fall River Board of Directors meetings around the time of her termination show 

that it was not experiencing any financial problems. However, as the district court found, those 

minutes contain references to “the economic downturn, potential stimulus money, cost-cutting, 

curbing unnecessary spending, rate increases, postponement of a building project, interest rate 

expense increases, efficiency increases, and an investigation into administrative costs.”

Bollinger sued Fall River for: (1) breach of express and implied contract, including breach 

of the covenant of good faith and fair dealing; (2) retaliatory discharge and wrongful termination in 

violation of public policy; and (3) negligent and intentional infliction of emotional distress. The 

district court granted summary judgment to Fall River on all of Bollinger’s claims. The district 

court also denied Bollinger’s motion for reconsideration, and she timely appealed to this Court.

II.

ISSUES ON APPEAL

I. Did the district court err in granting summary judgment on Bollinger’s breach of 

employment contract claim?

II. Did the district court err in granting summary judgment on Bollinger’s claim for 
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breach of the implied covenant of good faith and fair dealing?

III. Did the district court err in granting summary judgment on Bollinger’s claim for 

retaliatory discharge and termination in violation of public policy?

IV. Did the district court err in granting summary judgment on Bollinger’s claims for 

negligent and intentional infliction of emotional distress?

V. Is Bollinger entitled to attorney fees on appeal?

III.

DISCUSSION

A. Standard of Review

“This Court reviews a motion for summary judgment pursuant to the same standards as 

the district court.” Mackay v. Four Rivers Packing Co., 145 Idaho 408, 410, 179 P.3d 1064, 

1066 (2008). Summary judgment is appropriate where “the pleadings, depositions, and 

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to judgment as a matter of law.” I.R.C.P. 

56(c). “[A]ll reasonable inferences that can be drawn from the record are to be drawn in favor of 

the nonmoving party,” and disputed facts will be liberally construed in favor of the nonmoving 

party. Mackay, 145 Idaho at 410, 179 P.3d at 1066. However, the nonmoving party cannot rely 

on mere speculation, and a scintilla of evidence is insufficient to create a genuine issue of 

material fact. Van v. Portneuf Med. Center, 147 Idaho 552, 556, 212 P.3d 982, 986 (2009). This 

Court reviews questions of law de novo. Martin v. Camas County ex rel. Bd. of Comm’rs, 150 

Idaho 508, 511, 248 P.3d 1243, 1246 (2011). 

B. The district court properly granted summary judgment on Bollinger’s breach 

of employment contract claim because she was an at-will employee at the time 

of her termination.

On appeal, Bollinger asserts that Fall River breached its express or implied employment 

agreement with her by terminating her without cause. Bollinger argues that (1) the for-cause 

policy maintained by Fall River when she was hired remained in effect at the time of her 

termination, (2) Fall River implemented an at-will policy solely to allow her termination, and (3) 

Fall River’s policy of giving preference to senior employees somehow limited its ability to 

terminate Bollinger. Fall River responds that Bollinger was an at-will employee at the time of her 

termination by virtue of the 2004 and 2009 policies, which contained at-will employment language 

and expressly superseded the prior for-cause policy. Further, Fall River argues that Bollinger was 

terminated for economic reasons in accordance with an exception to the prior for-cause policy, and 
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that Bollinger has failed to raise a material issue of fact whether the at-will policy was 

implemented for the purpose of her termination. The district court found that Bollinger was an atwill employee at the time of her termination and, even if the for-cause policy remained in effect, 

she was laid off for economic reasons in accordance with that policy.

Employment in Idaho is presumed to be at will unless the employee is hired pursuant to a 

contract that states a fixed term or limits the reasons for discharge. Jenkins v. Boise Cascade 

Corp., 141 Idaho 233, 240–41, 108 P.3d 380, 387–88 (2005); Mitchell v. Zilog, Inc., 125 Idaho 

709, 712, 874 P.2d 520, 523 (1994). In the absence of an express contract, a limitation to the atwill employment presumption may be implied where the circumstances surrounding the 

employment relationship could cause a reasonable person to conclude that the parties intended a 

limitation on discharge. Id. Statements made and policies promulgated by the employer, whether 

in an employment manual or otherwise, may give rise to such an implied-in-fact agreement. See 

id. However, such statements must be more than vague statements of opinion or prediction, and 

policies must manifest an intent that they become part of the employment agreement. Metcalf v. 

Intermountain Gas Co., 116 Idaho 622, 624, 778 P.2d 744, 746 (1989); Atwood v. Western Const., 

Inc., 129 Idaho 234, 238, 923 P.2d 479, 483 (Ct. App. 1996). In the absence of a written 

agreement, this Court has held that an employer may unilaterally change the employment 

agreement by uniformly providing reasonable notice of the change to its affected employees; the 

employees accept by continuing to work following receipt of such notice. Watson v. Idaho Falls 

Consolidated Hospitals, Inc., 111 Idaho 44, 48, 720 P.2d 632, 636 (1986); Parker v. Boise Telco 

Fed. Credit Union, 129 Idaho 248, 254, 923 P.2d 493, 499 (Ct. App. 1996). 

Here, we find that Bollinger was an at-will employee at the time of her discharge, and she 

has failed to point to any circumstances that would create an implied-in-fact limitation on her atwill employment status. First, although Bollinger alleged in her complaint that she signed an 

employment contract at the time of her hire, she produced no evidence of that contract or its 

content at summary judgment. Second, although it is undisputed that Fall River maintained a forcause employment policy at the time of Bollinger’s hire, it effectively adopted a change to that 

policy at least as of April 6, 2009. The 2009 at-will employment policy clearly stated the 

employer’s intent to create an at-will employment relationship with all employees not covered by a 

separate, written employment agreement, and on April 6, 2009, it was uniformly distributed to all 

employees, including Bollinger, via email. Under Watson, Bollinger impliedly accepted that 
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change by continuing to work at Fall River following that notification.3 Further, although 

Bollinger attempts to argue that the for-cause policy somehow remained in effect, the 2009 policy 

expressly superseded any prior conflicting policy, including the for-cause policy on which she

relies. 

Further, Bollinger has failed to point to any other specific circumstances that could

reasonably cause her to believe her employment was protected. She asserts that she believed she 

could retire from Fall River based on statements of her hiring supervisors and the longevity of 

other employees, but she does not pinpoint any particular statement or affirmative conduct that 

would support that belief. Such a vague assertion cannot give rise to an implied-in-fact for-cause 

relationship, particularly in light of the express at-will policy of which Bollinger undisputedly 

received notice. Additionally, the employee seniority policy on which Bollinger heavily relies 

does not affect our conclusion. Under Metcalf, a policy must indicate an intent that it become part 

of the employment agreement.4 The seniority policy expressly stated that it did not constitute a 

contract between the employer and employee. Even if the seniority policy did become part of the

employment agreement, Bollinger’s reading of the seniority policy to somehow limit Fall River’s 

right to discharge senior employees directly conflicts with its subsequent at-will employment 

policy, which expressly superseded all prior conflicting policies. The promulgation of the at-will 

policy alone renders unreasonable any belief that Bollinger’s employment was protected. Thus, 

Bollinger’s status as a long-term employee did not affect Fall River’s right to terminate her 

employment at will.5 

Finally, Bollinger’s argument that Fall River adopted its at-will employment policy solely 

for the purpose of discharging her is unsupported by the record. Bollinger does not dispute that 

 3 Additionally, the 2004 policy—which outlined employee discipline—expressly stated that those disciplinary 

guidelines were not intended to create a contract or “guarantee of employment,” and that employment was 

“voluntary” and could be terminated at any time by either party. Such language would also have changed 

Bollinger’s employment status to at-will, but the record is unclear whether the affected employees were uniformly 

notified of it. Although Bollinger stated she was generally familiar with Fall River’s policies, this Court—drawing 

all inferences in favor of Bollinger—cannot find as a matter of law that it was adequately distributed as required 

under Watson. 4 “Unless an employee handbook specifically negates any intention on the part of the employer to have it become a 

part of the employment contract, a court may conclude from a review of the employee handbook that a question of 

fact is created whether the handbook was intended by the parties to impliedly express a term of the employment 

agreement.” Metcalf, 116 Idaho at 624, 778 P.2d at 746. 5 Even if the for-cause policy remained in effect, Fall River did not breach its employment contract. As the district 

court found, that policy had an exception for terminations for lack of work, and Bollinger has not raised a genuine 

factual issue that that was not the reason for her termination.
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Fall River implemented an early retirement program prior to her termination, or that she was 

terminated as part of a wider consolidation that affected four other employees. She makes only 

vague assertions that Case had been opposed to her recommended safety measures and became 

“hostile,” but her deposition testimony reveals only two heated discussions and eventual solutions 

to almost all of the issues she reported. She also argues that the minutes of the Fall River Board of 

Directors show that it was not dealing with effects of the recession. However, as indicated above, 

the minutes indeed show Fall River’s economic concerns, and Case’s general attitude toward 

Bollinger’s recommendations alone does not raise a genuine issue of material fact regarding the 

reason for her discharge. Such evidence constitutes no more than a mere scintilla that cannot 

defeat a motion for summary judgment. Thus, the district court properly granted summary 

judgment on Bollinger’s breach of contract claim.

C. The district court properly granted summary judgment on Bollinger’s good 

faith and fair dealing claim because she failed to identify a contractual duty 

that Fall River failed to perform in good faith.

Bollinger also argues that Fall River breached the covenant of good faith and fair dealing 

by terminating her without cause, asserting that the 2009 at-will employment policy was 

implemented by Case for the sole purpose of getting rid of her. Bollinger also argues that Fall 

River breached this duty by failing to “bump her back” to a position she had previously held, rather 

than discharge her, as she believes the seniority policy required. Fall River asserts that it had no 

contractual duty to discharge Bollinger only for cause or to merely demote her and, accordingly, 

the duty of good faith and fair dealing was not breached upon her discharge without cause. 

Further, it argues again that Bollinger has failed to raise a genuine factual issue as to whether the 

at-will policy was implemented solely to enable her discharge. Fall River’s argument echoes the 

district court’s findings.

The covenant of good faith and fair dealing, which is implied in all employment 

agreements, requires the parties to perform in good faith the obligations contained in their 

agreement. Van, 147 Idaho at 562, 212 P.3d at 992. A violation occurs when either party violates, 

qualifies, or significantly impairs any benefit or right of the other party under the agreement. Id. 

However, the covenant does not create new duties that are not inherent in the agreement itself and, 

thus, cannot create a for-cause termination limitation in an at-will employment agreement. Id.; 

Jenkins, 141 Idaho at 242–43, 108 P.3d at 389–90. 

As discussed above, Bollinger was an at-will employee at the time of her discharge by 
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virtue of Fall River’s 2009 at-will employment policy, and the seniority policy did not create any 

binding limitation on Fall River’s right to terminate her employment. Accordingly, Fall River did 

nothing more than exercise its contractual right when it terminated Bollinger’s employment. 

Further, as discussed above, Bollinger has failed to produce more than a scintilla of evidence that 

Case promulgated the 2009 policy for the sole purpose of carrying out some personal vendetta 

against her. The only rational inference to be drawn from the facts in the record is that the change 

in policy was a properly adopted, workplace-wide modification to the employment agreement 

rather than a deliberate impairment of Bollinger’s rights. Therefore, the district court properly 

granted Fall River summary judgment on Bollinger’s good faith and fair dealing claim.

D. The district court properly granted summary judgment on Bollinger’s claims 

for retaliatory discharge and termination in violation of public policy because 

she was not engaged in protected activity and failed to demonstrate a factual 

issue regarding the motivation behind her discharge.

Bollinger next argues that she was wrongfully terminated in retaliation for reporting several 

safety issues to Fall River management, and such termination was in violation of public policy. 

She also argues that Fall River’s failure to “honor all personnel policies” with respect to her was a 

violation of public policy. Fall River responds that Bollinger was not engaged in “protected 

activity” necessary to trigger the public policy exception because her safety reports were required

by her job duties. Further, the record does not support an inference that she was terminated in 

retaliation for those reports. Fall River also argues that a mere failure to honor policies does not 

fall into the public policy exception to at-will employment. The district court did not expressly 

address whether Bollinger was engaged in protected activity, but found that the record did not 

support any rational inference that her discharge was related to her safety reports.

This Court recognizes a narrow exception to the at-will employment presumption where 

the employer’s motivation for the termination contravenes public policy. Van, 147 Idaho at 561, 

212 P.3d at 991. This public policy exception is triggered only where an employee is terminated 

for engaging in some protected activity, which includes (1) refusing to commit an unlawful act, (2) 

performing an important public obligation, or (3) exercising certain legal rights and privileges. Id. 

Whether an employee is engaged in protected activity is a question of law. Id. In determining 

whether activity is protected, this Court analyzes (1) whether there is a public policy at stake 

sufficient to create an exception to at-will employment, and (2) “whether the employee acted in a 

manner sufficiently in furtherance of that policy.” Thomas v. Med. Center Physicians, P.A., 138 
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Idaho 200, 208, 61 P.3d 557, 265 (2002). The claimed public policy generally must be rooted in 

“case law or statutory language.” Edmondson v. Shearer Lumber Prod., 139 Idaho 172, 177, 75 

P.3d 733, 738 (2003). If an employee is engaged in a protected activity and subsequently 

terminated, the employee must also show that her termination was in fact motivated by her 

participation in that activity. Id. Although that question of causation is generally one for the jury, 

it may be decided as a matter of law where there exists no genuine issue of fact. See Thomas, 138 

Idaho at 208, 61 P.3d at 265. 

As an initial matter, Bollinger’s argument that Fall River’s failure to honor its employment 

policies triggers the public policy exception is without merit. As discussed above, Bollinger has 

not shown that Fall River failed to honor any binding employment policy in place at the time of her 

discharge. Even to the extent that it did, a mere failure to adhere to an employer’s private policies, 

without more, does not fall within any of the narrow public policy exception prongs outlined

above. In the same vein, Fall River’s argument that any activity required by Bollinger’s job duties 

cannot be “protected activity” is also without merit. Although the policy sought to be protected 

indeed must be a public policy, performance of duties required by an employer can rise to the level 

of protected activity when such performance also sufficiently furthers public policy. See Ray v. 

Nampa School Dist., 120 Idaho 117, 121, 814 P.2d 17, 21 (1991). Indeed, the entire purpose of the 

exception would be thwarted if it was deemed inapplicable whenever public policy aligned with 

the duties of the job.

Here, however, Bollinger fails to pinpoint any particular statute or regulation that would 

support her claim that her reports of safety issues implicated a public policy sufficient to justify an 

exception to at-will employment. Although we have recognized that reporting of safety violations 

may constitute protected activity,

6 we also require identification of the source of the public policy 

that would trigger the exception. Edmondson, 139 Idaho at 177, 75 P.3d at 738. Bollinger’s 

affidavit in opposition to summary judgment only vaguely asserts that Case “refused to implement 

or to follow safety rules and regulations of which [Bollinger] made him aware ... and ignored 

requirements for equipment; procedures; and regulations.” Nowhere in her briefing below or on 

appeal does Bollinger identify a legal source for those alleged rules and regulations. 

 6 Ray, 120 Idaho at 121, 814 P.2d at 21 (finding that an electrical maintenance worker’s reports of building and 

electrical code violations to the state electrical engineer was protected activity); Thomas, 138 Idaho at 208, 61 P.3d 

at 265 (finding that a report in furtherance of public policy does not necessarily have to be made to an outside entity 

to be protected).
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A closer look at the record reveals little more. Although Bollinger mentions OSHA 

generally in her deposition testimony, she never associates any of her complaints with specific 

OSHA regulations. She only mentions that the safety clothing she requested funding for was 

required by the National Electrical Safety Code (NESC), but that code is not legally binding on 

Fall River.

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 In fact, she specifically states that OSHA had not adopted requirements for the 

clothing at the time of her report. Although the state does have a general public policy interest in 

maintaining a safe workplace, the public policy exception would swing too wide if it protected 

advocacy of any of the infinite number of safety measures employers could take, regardless of 

whether they were required by law.

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 Bollinger’s remaining complaints to Fall River superiors are

unlinked to any specific legal requirement, and several of them were initially raised by Fall River’s 

insurer rather than Bollinger. Raising concerns at the behest of an insurer primarily furthers only 

private interests, and Bollinger fails to identify any independent public obligation that prompted 

those reports. 

In addition, Bollinger has failed to create a genuine issue of fact that her termination was 

motivated by her safety reports. As discussed above, Bollinger adduced no facts that would 

support a reasonable inference that she was terminated for any reason other than economic 

consolidation. She generally alleges that Case was adverse to her safety reports and became 

“hostile” toward her, but that alleged behavior is not demonstrated in the record. Almost all of the 

reported issues were either solved or in the process of being solved when Bollinger was 

discharged, and two “heated discussions” are the only traces of hostility to be found. Even to the 

extent that the evidence demonstrates some adversity, Bollinger identifies no evidence that would

link that adversity to her discharge, but rather rests on mere speculation. On the other hand, Fall 

River produced evidence that it had previously implemented an early retirement program,

terminated four other employees along with Bollinger, and reassigned Bollinger’s duties to the 

Operations Manager. Contrary to Bollinger’s assertion, Fall River’s board meeting minutes 

support that these measures were motivated by economic concerns. In all, a fact-finder could not 

 7 Although the Idaho Public Utilities Commission adopts the National Electrical Safety Code by reference in its 

regulations (IDAPA 31.11.01.101), cooperatives such as Fall River are not subject to the Commission’s jurisdiction. 

Clearwater Power Co. v. Wash. Water Power Co., 78 Idaho 150, 299 P.2d 484 (1956). 8 “The purpose of the exception is to balance the competing interests of society, the employer, and the employee in 

light of modern business experience.” Crea v. FMC Corp., 135 Idaho 175, 178, 16 P.3d 272, 275 (2000). Granting 

Bollinger protection for her reports of safety issues when she has not linked those issues to any definite public 

obligation would upset this balance.
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rationally find that Bollinger’s discharge was motivated by her safety reports. Thus, we find the 

district court correctly granted summary judgment on this claim. 

E. The district court properly granted summary judgment on Bollinger’s claims 

of negligent and intentional infliction of emotional distress.

Bollinger also argues that the district court erred in granting summary judgment on her

negligent and intentional infliction of emotional distress (NIED and IIED) claims. As for her 

NIED claim, she takes issue with the district court’s findings that Fall River did not breach a legal 

duty to her and that Bollinger demonstrated no physical manifestations of her emotional distress. 

Fall River responds that her NIED claim is preempted by state workers’ compensation law and, 

regardless, no legal duty is breached by the firing of an at-will employee. Further, Fall River 

argues that Bollinger showed no physical manifestation of her distress. As for Bollinger’s IIED 

claim, she takes issue with the district court’s finding that Fall River’s behavior was not extreme 

and outrageous. Fall River echoes the district court’s finding.

1. Negligent Infliction of Emotional Distress

Although workers’ compensation is the exclusive remedy for an employee’s injuries arising 

out of and in the course of employment, a tort action may be maintained against the employer if the 

injury is not compensable under workers’ compensation. Roe v. Albertson’s, Inc., 141 Idaho 524, 

530, 112 P.3d 812, 818 (2005). NIED is a negligence action, requiring a showing of (1) a legally 

recognized duty, (2) a breach of that duty, (3) a causal connection between the defendant’s conduct 

and the breach, and (4) actual loss or damage. Johnson v. McPhee, 147 Idaho 455, 466, 210 P.3d 

563, 574 (Ct. App. 2009) (citing Brooks v. Logan, 127 Idaho 484, 489, 903 P.2d 73, 78 (1995)). 

Additionally, the plaintiff must demonstrate physical manifestation of the alleged emotional injury. 

Johnson, 147 Idaho at 466, 210 P.3d at 574 (citing Black Canyon Racquetball Club, Inc. v. Idaho 

First Nat’l Bank, 119 Idaho 171, 177, 804 P.2d 900, 906 (1991)). An employer does not breach a 

legal duty to an at-will employee simply by terminating her without cause. See Sorenson v. St. 

Alphonsus Reg’l Med. Ctr., 141 Idaho 754, 761–62, 118 P.3d 86, 93–94 (2005). 

As an initial matter, the district court was correct that Bollinger’s NIED claim is not 

preempted by the workers’ compensation law. The type of injury covered under workers’ 

compensation is that “caused by an accident, which results in violence to the physical structure of 

the body.” Roe, 141 Idaho at 531, 112 P.3d at 819 (quoting I.C. § 72-102(17)(c)). An accident is 

an “unexpected, undesigned, and unlooked for mishap, or untoward event.” Id., (quoting I.C. § 

72-102(17)(b)). The injury Bollinger claims was not caused by violence to the body but rather 
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emotional distress unrelated to any physical injury. As such, it is not the type of injury 

contemplated by the workers’ compensation law. Further, although Bollinger seeks recovery 

under a negligence cause of action, her alleged injury was not caused by the type of “accident” 

contemplated by Idaho Code. The conduct of Fall River—its discharge of Bollinger—was 

planned. As such, Bollinger’s NIED claim is not preempted by the workers’ compensation law.

However, we find that Bollinger’s NIED claim was properly dismissed as a matter of law 

because she pinpoints no legal duty that was breached by her termination. As this Court noted in 

Sorenson, the mere termination of an at-will employee—without more—does not constitute the 

breach of a duty sufficient to support an NIED claim. As such, Bollinger’s claim that Fall River 

breached a duty to her by terminating her in disregard of its employment policies is without merit. 

As discussed above, Bollinger was an at-will employee and, therefore, Fall River could legally 

terminate her at any time, for any reason. Although the parties also dispute whether she showed 

physical manifestation of her emotional injury, we need not reach that question because Bollinger’s 

claim fails at the duty stage. Accordingly, the district court correctly granted summary judgment 

on Bollinger’s NIED claim. 

2. Intentional Infliction of Emotional Distress

To recover on a claim of IIED, the plaintiff must show that: (1) the defendant’s conduct 

was intentional or reckless, (2) the conduct was extreme and outrageous, (3) there was a causal 

connection between the conduct and the emotional distress, and (4) the emotional distress was 

severe. Nation v. State Dep’t of Correction, 144 Idaho 177, 192, 158 P.3d 953, 968 (2007). To 

support an IIED claim, conduct must be more than merely “unjustifiable,” but rather must rise to 

the level of “atrocious” behavior “beyond all possible bounds of decency.” Edmondson, 139 Idaho 

at 180, 75 P.3d at 741. 

Here, although Fall River’s conduct in terminating Bollinger’s employment was 

intentional, it certainly was not extreme and outrageous. As discussed above, Bollinger was an atwill employee, so the simple fact that she was discharged without cause cannot constitute extreme 

and outrageous behavior. Further, although Bollinger’s discharge was abrupt and the time she was 

given to pack her office relatively rushed, such conduct is not atrocious or beyond all possible 

bounds of decency. In fact, escorting an employee who has just been terminated from the building 

in a timely fashion is an acceptable means to minimize disruption in the workplace. In addition, as 

the district court aptly stated, “Fall River took pains to velvet the termination hammer” by offering 
14

her a ride home, allowing her to return for additional items from her office, and writing letters of 

recommendation on her behalf. Accordingly, the district court properly granted summary 

judgment based on Bollinger’s failure to demonstrate extreme and outrageous conduct. 

F. Bollinger is not entitled to attorney fees on appeal.

Finally, Bollinger claims that she is entitled to attorney fees on appeal, citing Idaho 

Appellate Rule 41. Bollinger is not the prevailing party and not entitled to fees.9

IV.

CONCLUSION

For the reasons discussed above, we affirm the district court’s grant of summary 

judgment to Fall River on all of Bollinger’s claims. Fall River is awarded its costs on appeal.

Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON CONCUR.

 9 In any event, Rule 41 is not a statutory provision authorizing the award of attorney fees. Rather, it is a court rule 

establishing the procedure for requesting and determining a fee award when a statute or contract makes one 

available.