The Ninth Circuit reversed summary judgment against Thomas Ray Fleming, a former Boise Police Department lieutenant, holding that a reasonable jury could find he was constructively discharged in retaliation for protected whistleblower activity under the Idaho Protection of Public Employees Act (IPPEA). The Court concluded that Fleming presented sufficient evidence that his working conditions became intolerable after he reported misconduct involving Boise Police Chief Ryan Lee.
Fleming’s claim arose from two episodes of reported misconduct. First, he investigated an off-duty incident involving another officer. Lee criticized how Fleming documented the matter, and Fleming testified that their relationship deteriorated thereafter. The tension escalated significantly when Fleming later contacted an outside law enforcement agency to investigate a complaint filed against Lee.
The record demonstrated several changes in Fleming’s work environment following the report. Lee began restricting his interactions with Fleming and repeatedly questioned Fleming about when he planned to retire. At the same time, Fleming observed that Lee’s behavior toward others worsened and that morale within the Department declined. Fleming described an environment in which Lee retaliated against subordinates who challenged him, used demeaning language, and protected officers with whom he had personal relationships.
An Office of Police Accountability (OPA) report corroborated many of these allegations. Employees reported concerns about Lee’s conduct, including retaliation over disputes about department policy, use of disparaging language toward subordinates, and uneven discipline. Fleming followed appropriate channels to report Lee’s behavior, yet no action was taken, and Lee remained in his position. Fleming ultimately resigned, asserting that continued employment under these circumstances was untenable.
Under the IPPEA, a public employee must show that he suffered an adverse action because he engaged in whistleblowing. A discharge — including a constructive discharge — qualifies as an adverse action. To establish constructive discharge, an employee must demonstrate that working conditions were so intolerable that a reasonable person in the employee’s position would feel compelled to resign. Courts apply an objective standard and consider the totality of the circumstances, looking for aggravating factors such as persistent hostility, retaliatory behavior, exclusion from normal duties, demotions, unwarranted discipline, or pressure to resign.
The Ninth Circuit held that Fleming satisfied this threshold at summary judgment. The lower court granted summary judgment to the City of Boise, but the Ninth Circuit reversed, finding that Fleming had raised a genuine issue of fact as to whether he was constructively discharged in retaliation for whistleblowing activity. The Court emphasized that although a single incident cannot support a constructive discharge claim, a continuous pattern of retaliatory or discriminatory treatment can. The evidence in the record demonstrated that Fleming experienced diminished communication from Lee, repeated retirement inquiries, deteriorating workplace relations, and the broader pattern of alleged retaliation documented in the OPA report, all of which could allow a reasonable jury to conclude that Fleming’s working conditions became objectively intolerable.
The Court rejected the City’s argument that conditions described by other officers were irrelevant. While not all the allegations pertained directly to Fleming, the Court held that the broader departmental climate was relevant to understanding the severity and credibility of Fleming’s claimed environment. The OPA report therefore helped contextualize Fleming’s allegations and contributed to a triable issue of fact.
Fleming v. City of Boise, 2025 WL 2837734 (9th Cir. Oct. 7, 2025).