                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 22 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TERESA L. PHELPS,                               No.    16-35278

                Plaintiff-Appellant,            D.C. No.
                                                1:14-cv-00085-EJL-REB
 v.

CITY OF PARMA, Idaho; CRAIG                     MEMORANDUM*
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.

                   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.
      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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