                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 44090


RAUL MENDEZ,                            )
                                        )
      Plaintiff-Appellant,              )                  Boise, September 2017 Term
                                        )
v.                                      )                  2018 Opinion No. 7
                                        )
UNIVERSITY HEALTH SERVICES BOISE )                         Filed: January 17, 2018
STATE UNIVERSITY, MARIEL DOYLE,         )
                                        )                  Karel A. Lehrman, Clerk
      Defendants-Respondents.           )
_______________________________________ )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, Ada County. Hon. Timothy Hansen, District Judge.

       The district court’s judgment is affirmed.

       Raul Mendez, Meridian, appellant pro se.

       Cantrill, Skinner, Lewis, Casey & Sorensen, LLP, Boise, for respondent.
                                   _____________________

                               SUBMITTED ON THE BRIEFS

BRODY, Justice.
       This case addresses an employee’s claims arising after his employer terminated his
employment. The employee brought claims under provisions of the Idaho Human Rights Act,
claiming that the employer unlawfully discriminated against him based on race. He also alleged
breach of employment contract and the implied covenant of good faith. Finally, he sought to
disqualify the trial judge for cause based upon perceived bias. The district court denied the
employee’s disqualification motion and granted summary judgment for the employer on all four
of the employee’s claims. We affirm the judgment entered in favor of the employer.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       Raul Mendez was hired by University Health Services Boise State University
(“University Health”) as a customer service representative on or about August 24, 2011. Mariel



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Doyle worked at University Health as a team lead and was one of Mendez’s supervisors. She
also participated in Mendez’s interview and hiring process. Mendez remained in his position
with University Health until November 15, 2011, when he was notified that his employment was
being terminated. Mendez was given the option to resign in lieu of being terminated, and he
chose to resign on November 18, 2011.
       Mendez filed a four-count complaint against University Health, Mariel Doyle, and Libby
Greaney. He amended his complaint, removing Libby Greaney and adding the State of Idaho as a
defendant. Mendez later requested to dismiss the State of Idaho, which the district court granted.
Mendez proceeded against University Health and Mariel Doyle (“Respondents”), alleging (1)
unlawful discrimination in violation of Idaho Code section 67-5909, (2) retaliation in violation of
Idaho Code section 67-5911, (3) breach of the implied covenant of good faith and fair dealing,
and (4) breach of implied and/or express employment contract.
       Mendez’s claims centered on conduct that he alleged constituted discrimination against
him because he is Hispanic. He claimed that Respondents failed to provide him adequate training
and supervision, which non-Hispanic employees received. Mendez also claimed that non-
Hispanic employees made the same mistakes he made, but only he received formal discipline.
Additionally, he claimed his reporting the alleged discrimination led to his eventual discharge
less than three months after he started as a customer service representative.
       Respondents filed a motion for summary judgment on all four counts in the amended
complaint. Along with the supporting memorandum, the Respondents included affidavits of
several University Health employees—including Respondent Mariel Doyle. Before the district
court’s scheduled hearing on the summary judgment motion, Mendez filed a motion to disqualify
the trial judge without cause, followed a week later by a motion to disqualify with cause.
Following a hearing, the district court dismissed the motion to disqualify without cause as
untimely, and denied the motion to disqualify with cause. The court then held a hearing on
Respondents’ summary judgment motion, and granted summary judgment for Respondents on all
four counts of Mendez’s amended complaint. Mendez timely appealed.
                                  II. STANDARDS OF REVIEW
       This Court reviews a summary judgment motion under the same standards the district
court used. 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


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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 a judgment as a matter of law.” I.R.C.P. 56(c) (2015). All
disputed facts must be liberally construed in favor of the nonmoving party, and all reasonable
inferences from the record must be drawn in favor of the nonmoving party. Mackay, 145 Idaho at
410, 179 P.3d at 1066. “Summary judgment is appropriate where the nonmoving party bearing
the burden of proof fails to make a showing sufficient to establish the existence of an element
essential to that party’s case.” Id. This Court reviews questions of law de novo. Castorena v.
Gen. Elec., 149 Idaho 609, 613, 238 P.3d 209, 213 (2010) (citation omitted).
       This Court considers appeals from a district court’s discretionary determination based on
three factors: “(1) whether the trial court correctly perceived the issue as discretionary; (2)
whether the trial court acted within the bounds of that discretion and consistent with the
applicable legal standards; and (3) whether the trial court reached its determination through an
exercise of reason.” State v. Pratt, 128 Idaho 207, 211, 912 P.2d 94, 98 (1996).
       Mendez appeared pro se throughout the majority of the district court’s proceedings below
and continues to on appeal. “Pro se litigants are not entitled to special consideration or leniency
because they represent themselves.” Bettwieser v. N.Y. Irrigation Dist., 154 Idaho 317, 322, 297
P.3d 1134, 1139 (2013). Pro se litigants must conform to the same standards and rules as
litigants represented by attorneys, and this Court will address the issues accordingly. Michalk v.
Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585 (2009); Suitts v. Nix, 141 Idaho 706, 709, 117
P.3d 120, 123 (2005).
                                            III. ANALYSIS
A. The district court did not err in granting summary judgment on Mendez’s
   discrimination claim under Idaho Code section 67-5909.
       Mendez asserted a race discrimination claim under Idaho Code section 67-5909. He
claimed that Respondents failed to properly train him, and that this resulted in formal discipline
and eventual discharge. He also alleged that he did not receive his orientation package until
months after starting in his position, while another new employee—who was white—received
her package immediately. Additionally, he claimed that other non-Hispanic employees made
similar mistakes, but Respondents did not subject them to the same punishment. Mendez claimed
also that the only other Hispanic male employee endured similar treatment. He alleged his
eventual resignation in lieu of termination followed directly from these actions in violation of his



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civil rights under Idaho law. Mendez’s primary contention on appeal is that the district court
failed to liberally construe the disputed facts and draw inferences in his favor.
       The Idaho Human Rights Act (“IHRA”), Idaho Code sections 67-5901 et seq., lists two
general purposes relevant to Mendez’s claims: (1) “[t]o provide for execution within the state of
the policies embodied in the federal Civil Rights Act of 1964, . . . [and] (2) [t]o secure for all
individuals within the state freedom from discrimination because of race, color, religion, sex or
national origin . . . .” I.C. § 67-5901. The IHRA prohibits employers from discriminating against
or discharging employees based on race, color, religion, sex, or national origin. I.C. § 67-5909.
The IHRA’s legislative intent permits Idaho courts to reference federal law in construing state
provisions. Mackay, 145 Idaho at 413, 179 P.3d at 1069. In IHRA cases, this Court applies the
burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Hatheway v. Bd. of Regents of the Univ. of Idaho, 155 Idaho 255, 310 P.3d 315 (2013) (applying
McDonnell Douglas to an age discrimination claim); Bowles v. Keating, 100 Idaho 808, 606 P.2d
458 (1979) (same for a sex discrimination claim).
       The McDonnell Douglas test proceeds in three parts. The threshold requirement is for an
employee to “establish a prima facie case of discrimination under the disparate treatment
theory.” Bowles, 100 Idaho at 812, 606 P.2d at 462. This requires a plaintiff to show that: (1) he
belongs to a protected class; (2) he was qualified for his position; (3) he experienced an adverse
employment action, and (4) similarly situated people outside his protected class received more
favorable treatment, “or other circumstances surrounding the adverse employment action give
rise to an inference of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th
Cir. 2004). Once a plaintiff satisfies the threshold requirement, the burden of production shifts
back to the defendant “to articulate some legitimate nondiscriminatory reason for the employee’s
rejection.” Hatheway, 155 Idaho at 263, 310 P.3d at 323 (quoting McDonnell Douglas, 411 U.S.
at 802). Finally, if the defendant meets the burden of production, the plaintiff then must produce
evidence demonstrating “the proffered reason is in fact pretext for unlawful discrimination.” Id.
       The district court articulated the correct legal standard under McDonnell Douglas in its
summary judgment analysis. As to the prima facie requirement, Respondents did not dispute the
first and third elements in the proceedings below—that Mendez is a member of a protected class
as a member of the Hispanic race, and that his notice of termination constituted an adverse
employment action. The district court further found the record sufficient to demonstrate Mendez


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was qualified for his position as a customer service representative, since Respondents hired him
at increased starting pay due to his medical experience. In its analysis of the fourth element, the
district court stated:
        Plaintiff asserts that Eric [], the only other Hispanic male employee in the
        department, also experienced similar adverse employment actions. Plaintiff
        further asserts that Defendant did not provide him with a new employee
        orientation package until approximately two months after he was hired, yet
        Defendant made sure that Jacee, a new employee who was “white,” received her
        orientation package right away.
The district court concluded, “Viewing the evidence in the light most favorable to Plaintiff, the
Court concludes that Plaintiff has established a prima facie case of disparate treatment.”
        The court’s analysis then shifted to whether Respondents had a nondiscriminatory reason
for terminating Mendez’s employment. Here, the district court cited Mendez’s supervisor Mariel
Doyle’s well-documented performance concerns in the record, including inappropriate
conversations with patients, untimeliness, staying on the clock longer than should be required,
failure to follow procedures, negative attitude, and inappropriately “gawking” at people, among
others. The district court concluded that Respondents had “legitimate, nondiscriminatory reasons
for disciplining [Mendez] and terminating his employment.”
        Finally, the court then applied the final step of the McDonnell Douglas analysis to
determine whether Respondents’ reasons for terminating Mendez’s employment were genuine or
pretext. Here, the burden shifts back to Mendez. Hatheway, 155 Idaho at 267, 310 P.3d at 327.
He “can establish pretext by showing either that a discriminatory reason more likely motivated
the employer or that the employer’s proffered explanation is unworthy of credence.” Id. (citation
omitted). “Generally, a plaintiff demonstrates pretext by showing that ‘the employer’s stated
reason for the adverse employment action either (1) has no basis in fact, (2) was not the actual
reason, or (3) is insufficient to explain the employer’s action.’” Id. (quoting White v. Baxter
Healthcare Corp., 533 F.3d 381, 393 (6th Cir. 2008)). The district court concluded that Mendez
could not meet this burden, as he provided no evidence that his cited work issues are not based in
fact or are not legitimate nondiscriminatory reasons. The court concluded that Mendez did not
demonstrate a genuine issue of material fact as required, and thus granted summary judgment for
Respondents.
        In light of the record, the district court’s analysis and reasoning were sound. Construing
all facts liberally for Mendez, and drawing all reasonable inferences in his favor, he has failed to


                                                 5
show Respondents’ stated reasons were pretext rather than legitimate. This Court thus affirms the
district court’s grant of summary judgment on Mendez’s discrimination claim.
B. The district court did not err in granting summary judgment on Mendez’s retaliation
   claim under Idaho Code section 67-5911.
       Mendez next asks this Court to review the district court’s grant of summary judgment on
his retaliation claim under Idaho Code section 67-5911. Mendez claimed that his discharge from
University Health was causally related to his complaining to the senior HR specialist about his
perceived discrimination. Again, he contends that the court failed to liberally construe the
disputed facts and draw inferences in his favor.
       An IHRA claim under section 67-5911 is commonly known as a retaliation claim.
Patterson v. State of Idaho, Dep’t of Health & Welfare, 151 Idaho 310, 318, 256 P.3d 718, 726
(2011). A prima facie retaliation claim requires a plaintiff to demonstrate that (1) he engaged in
protected activity; (2) suffered an adverse employment action; and (3) there is a causal link
between the two. Id. Opposing an unlawful employment practice is a protected activity. Id.
(citing EEOC v. Luce, Forward, Hamilton & Scripps, 303 F.3d 994, 1005 (9th Cir. 2002)); I.C.
§ 67-5911.
       Respondents conceded that Mendez engaged in a protected activity by reporting his
concerns about potential discrimination, and that his resignation in lieu of termination constituted
an adverse employment action. The only contested issue in the district court then was whether
there was a causal link between the two. Mendez claimed he contacted the HR specialist about
his concerns and requested to meet on about October 6, 2011. He met with the HR specialist to
report alleged discrimination on October 10, 2011. However, Respondent Doyle began
documenting Mendez’s performance issues in late September—approximately two weeks before
this meeting. The district court noted:
       From September 27, 2011, through October 7, 2011, Ms. Doyle documented
       numerous concerns regarding Plaintiff’s performance, including Plaintiff’s
       inappropriate conversations with patients, his unwillingness to answer telephone
       calls, and his failure to follow procedures for checking patients out and for
       recording patients’ insurance information. On October 5, 2011, before Plaintiff
       engaged in protected activity by meeting with Mr. Cover regarding his
       discrimination concerns, Ms. Doyle created a Record of Employee Conference
       Form setting forth performance issues Ms. Doyle had observed on October 3 and
       October 4, 2011. Further, as early as October 4, Ms. Doyle indicated in an email
       conversation that Plaintiff may not “work out” and may need to be released.



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Mendez’s bare assertions and conclusory statements that his firing was in retaliation for
reporting discriminatory behavior do not negate the ample facts in the record that his issues
started before his protected conduct and continued throughout his tenure at University Health.
Mendez failed to demonstrate a genuine issue of material fact on this claim.
       This Court determines Mendez did not demonstrate a causal link between his reporting
alleged discrimination and his termination, and accordingly affirms the district court’s grant of
summary judgment on Mendez’s retaliation claim.
C. The district court did not err in granting summary judgment on Mendez’s claim for
   breach of the implied covenant of good faith.
       Mendez next attacks the district court’s grant of summary judgment on his claim for
breach of the implied covenant of good faith. He again alleges that the district court failed to
construe the record in the light most favorable to him as the nonmoving party. Mendez restates
arguments he made in the district court proceedings about what he alleges are Respondents’ good
faith violations, including that the Idaho Administrative Code (“IDAPA”) prohibits terminating
him before the conclusion of his probationary employment period; that Respondents failed to
timely provide him with an orientation package or appropriate training; and that Respondents
fabricated the issues that led to his termination. Respondents contend that IDAPA does not bar a
state entity from terminating an employee during his probationary employment period. They
further state that Mendez’s late receipt of an orientation package, even if in violation of internal
policy, does not rise to the level of breaching the covenant of good faith between employer and
employee.
       The implied covenant of good faith and fair dealing exists in all employment agreements,
including at-will employment. Wesco Autobody Supply, Inc. v. Ernest, 149 Idaho 881, 891, 243
P.3d 1069, 1079 (2010). “A party breaches the covenant when it violates, qualifies, or
significantly impairs any benefit or right of the other party . . . .” Nix v. Elmore Cnty., 158 Idaho
310, 319, 346 P.3d 1045, 1054 (2015) (citing Jenkins v. Boise Cascade Corp., 141 Idaho 233,
243, 108 P.3d 380, 390 (2004)). This covenant does not create new duties, however, and does not
modify an employer’s right to fire an at-will employee. Id.
       Mendez’s reliance on IDAPA is misplaced. IDAPA does not mandate that employers
retain employees for the duration of their probationary period. On the contrary, it states,
“Regardless of the probation status, when a Rule 190 violation supports demotion, suspension, or
dismissal, such action may occur.” IDAPA 15.04.01.153. Rule 190 includes among its many

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causes for disciplinary actions: “Inefficiency, incompetency, or negligence in performing duties,
or job performance that fails to meet established performance standards.” IDAPA
15.04.01.190.01(b).
       Mendez’s delayed orientation package and his alleged lack of training are likewise
unavailing in light of the record in this case. The district court noted the “numerous instances”
Mariel Doyle documented where she flagged issues with Mendez’s work, spoke to him directly
about those issues, and provided corrective instruction. Indeed, Doyle in her affidavit
documented dozens of these issues beginning in September and leading up until just days before
informing Mendez of University Health’s decision to finally terminate him. Mendez provides no
evidence for his assertion that Respondents fabricated this information, only conclusory
statements. In light of the evidence contained in the record, Mendez fails to demonstrate a
genuine issue of material fact regarding this claim.
       This Court affirms the district court’s grant of summary judgment for Respondent on
Mendez’s claim for breach of the implied covenant of good faith.
D. The district court did not err in granting summary judgment on Mendez’s claim for
   breach of employment contract.
       Mendez’s final claim for relief alleged a violation of employment contract for University
Health’s alleged failure to follow its policies and procedures. He again claims the district court
did not construe the record in his favor as required under the summary judgment standard.
Respondents contend summary judgment was proper because Mendez provided no evidence that
either an express or implied contract existed between Mendez and University Health.
       An employer may terminate its relationship with an at-will employee without liability.
Sorensen v. Comm Tek, Inc., 118 Idaho 664, 666, 799 P.2d 70, 72 (1990). However, even in the
absence of an express employment contract limiting an employer’s right to terminate, one may
still be implied. Id. “A limitation may be implied if, from all the circumstances surrounding the
employment relationship, a reasonable person could conclude that both parties intended that the
employer’s (or the employee’s) right to terminate the employment relationship at-will had been
limited by the implied-in-fact agreement of the parties.” Id.
       Mendez provided no evidence of either an express contract, or of circumstances that
would indicate an implied contract. He claimed instead that University Health did not follow its
own internal policies, and that gives rise to a breach of contract claim. The district court correctly
noted that Mendez was an at-will employee “disciplined and terminated during his probationary

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period.” Mendez failed to demonstrate a genuine issue of material fact on his breach of
employment contract claim.
       We affirm the district court’s grant of summary judgment for Respondent on the claim
for breach of employment contract, since neither an express nor implied contract existed.
E. The district court did not err in denying Mendez’s motion to disqualify the trial judge
   for cause.
       Mendez also appeals the district court’s decision to deny his motion to disqualify the trial
judge for cause. He asserts only vague allegations based on the district court’s procedural
decisions, along with accusations of collusion and concealment levied against both the court and
opposing counsel. Respondents contend that this motion and Mendez’s generic “fraud” claims
are meritless.
       A motion to disqualify for cause must be “accompanied by an affidavit of the party or the
party’s attorney stating distinctly the grounds upon which disqualification is based and the facts
relied upon in support of the motion.” I.R.C.P. 40(d)(2)(B) (2015). Grounds for disqualification
include the judge being a party to the proceeding, related to a party, acting as an attorney for a
party, or showing bias or prejudice toward a party. I.R.C.P. 40(d)(2)(A) (2015). “A judge may
not be disqualified for prejudice unless it is shown that the prejudice is directed against the party
and is of such nature and character as would render it improbable that the party would receive a
fair and impartial trial.” Idaho Dep’t of Health & Welfare v. Doe (2016-27), 161 Idaho 660, 664,
389 P.3d 946, 950 (2016).
       The district court denied the motion to disqualify for cause. Mendez’s claims of judicial
bias included email exchanges with clerks, the court’s procedural decisions, and scheduling
changes. The district court determined that the conduct Mendez alleged showed bias was either
frivolous or self-induced. For example, Mendez claimed in his supporting affidavit, “Trial was
originally scheduled for 12/8/2014 but it was ‘vacated’ without a Stipulation or an Order from
the Court. I believe that Judge Hansen went along with Defendant [sic] stated desire to vacate
trial . . . .” The court vacated the initial trial date because Mendez—on the record—requested
more time so he could attempt to find counsel.
       Mendez’s allegations on appeal follow the same conclusory pattern. For example,
Mendez states in his reply brief:
       It is certainly obvious that the 10/4/2011 email reminding all CSR’s to not
       continue making the same mistakes, but for which only Mendez was reprimanded


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       did not need to be sealed and the same goes for the entire exhibit. This is the most
       obvious proof of how the district judge abused his discretion thru [sic] the
       proceedings, [and] therefore the reason Mendez [filed the] Motion to disqualify
       him with cause. The decision was made because defendant attempted to conceal
       the evidence that proves the disparate treatment.
The record tells a different story, however. Mendez was present at the hearing in which the court
discussed sealing his exhibit. After Respondents argued that an exhibit containing personal
medical information should be sealed, the court asked if Mendez had any comments in response.
Mendez stated he was “not opposed to keeping it out of the public eye” if he could still use it at
trial. The court informed him that he could, explained the unsealing process to him, then asked,
“[G]iven that explanation, Mr. Mendez, you do not then have a problem with the motion to
seal?” Mendez replied, “Correct.” Mendez thus shifted his willingness to accept the sealing of
the exhibit—which contained the email along with personal medical records—into an allegation
that the judge made the decision to seal the document to assist Respondents in concealing
evidence. Regarding his for-cause disqualification claim, Mendez has demonstrated on appeal
the same tendency to disregard the facts when alleging bias or misconduct.
       Procedurally, in considering this motion, the district court noted the issue as one of
discretion. It acted within its discretion and used reason when it denied Mendez’s motion to
disqualify for cause. This Court thus affirms the district court’s decision to deny Mendez’s
motion for disqualification for cause.
F. Mendez has failed to allege any facts indicating fraud.
       Additionally, Mendez recycles the above facts to allege a fraud claim under Rule 60 of
the Idaho Rules of Civil Procedure. Under this rule, “the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for . . . fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” I.R.C.P.
60(b)(3). He alleges nothing new in the fraud claim. The same conclusory allegations on which
Mendez relied to appeal the disqualification motion also fail with respect to his fraud claim.
Mendez has alleged no facts that would warrant relief under Rule 60 for fraud.
G. Respondents are entitled to a partial award of attorney’s fees.
       Respondents request attorney’s fees under Idaho Code sections 12-117, 12-120, and 12-
121. Section 12-121 allows the Court to “award reasonable attorney’s fees to the prevailing party
or parties when the judge finds that the case was brought, pursued or defended frivolously,
unreasonably or without foundation.” I.C. § 12-121. Similarly, section 12-117 permits fees “in

                                               10
any proceeding involving as adverse parties a state agency or a political subdivision and a
person, . . . if it finds that the nonprevailing party acted without a reasonable basis in fact or
law.” I.C. § 12-117(1). Though unsuccessful, we find that Mendez’s appeal was not frivolous or
without foundation. We do not award fees under these sections.
       Section 12-120 allows for reasonable attorney’s fees for a prevailing party “in any
commercial transaction unless otherwise provided by law . . . .” I.C. § 12-120(3). We have held
that an allegation of breach of an employment contract qualifies as a “commercial transaction”
under the statute. Nix v. Elmore Cnty., 158 Idaho 310, 320, 346 P.3d 1045, 1055 (2015). Here,
Mendez alleged such a breach, so Respondents are entitled to fees associated with their
employment contract defense.
                                        IV. CONCLUSION
       For the foregoing reasons, this Court affirms the district court’s grants of summary
judgment and its denial of the motion to disqualify the trial judge for cause. We also award
Respondents costs and partial fees as described above.


       Chief Justice BURDICK, and Justices JONES, HORTON, and Justice Pro Tem FORD
CONCUR.




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