                                                                           FILED
                              NOT FOR PUBLICATION                           JUL 24 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



ROBERT ORLOFF, an individual                     No. 10-35900

              Plaintiff - Appellant,             D.C. No. 1:07-cv-00509-EJL-
                                                 CWD
  and

PAUL GOOCH and DAREL                             MEMORANDUM *
HARDENBROOK, individuals,

              Plaintiffs,

  v.

UNITED PARCEL SERVICE, INC.,
Delaware corporation doing business in
the State of Idaho,

              Defendant - Appellee.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                            Argued and Submitted May 7, 2012
                                   Seattle, Washington

Before: GOULD, BYBEE, and BEA, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          Robert Orloff appeals the district court’s grant of summary judgment for

United Parcel Service (“UPS”) on Orloff’s claim of wrongful demotion in violation

of Idaho public policy, finding that he did not engage in any conduct bringing him

within the public policy exception to the at-will employment doctrine. Orloff also

appeals the magistrate judge’s denial of leave to amend his complaint to add a

claim for punitive damages. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      Idaho recognizes a narrow exception to the at-will doctrine “where the

employer’s motivation for the termination contravenes public policy.” Bollinger v.

Fall River Rural Elec. Co-Op, 272 P.3d 1263, 1271 (Idaho 2012). This exception

is triggered, however, only when the employee “engage[s] in some protected

activity,” id., including “(1) refus[ing] to commit an unlawful act; (2) perform[ing]

an important public obligation; or (3) exercis[ing] certain rights or privileges,”

Thomas v. Med. Ctr. Physicians, P.A., 61 P.3d 557, 565 (Idaho 2002). Whether the

employee engaged in a “protected activity” is a question of law decided by the

court. Bollinger, 272 P.3d at 1271. The court must first determine if there is a

public policy sufficient to create an exception to the employer’s right to terminate

an at-will employee. Thomas, 61 P.3d at 565. And second, the court must

determine whether the employee “acted in a manner sufficiently in furtherance of


                                            2
that policy.” Id.; see also Bollinger, 272 P.3d at 1271. Only after an affirmative

finding of these two factors will the question of employer motivation be sent to the

jury. Bollinger, 272 P.3d at 1271.

      Orloff claims that he was demoted for failing to prevent his subordinates

from reporting unlawful activity, actions of which he was generally unaware. He

contends that he thus qualifies for the public policy exception because it protects

employees from actions by employers that are motivated by reasons contravening

Idaho public policy. Even if Orloff’s characterization is correct, he still does not

qualify for the public policy exception because the Idaho Supreme Court has made

clear that the initial trigger for the exception is the protectable action by the

employee whose employment was adversely affected, not the bad motivation of the

employer. See, e.g., Thomas, 61 P.3d at 565.

      The district court found that although there is a protectable public policy in

favor of reporting violations of legal requirements, Orloff did not know of his

subordinates’ reports and did not otherwise engage in any protected behavior. The

court concluded that Orloff’s conduct, or lack thereof, did not put him within the

public policy exception. Because Orloff did not engage in any action in

furtherance of any important public policy, the district court did not err. The

district court also correctly found that “[t]here is no public policy precluding UPS


                                            3
from taking employment action against a supervisor for failing to stay informed of

their subordinates [sic] concerns or conduct.” Therefore, the district court properly

granted UPS’s motion for summary judgment.

      Because summary judgment was proper, Orloff’s appeal of the magistrate’s

failure to grant leave to amend is moot.

      AFFIRMED.




                                           4
