Hutchins v. Directv, Inc.

Filing 110

MEMORANDUM DECISION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SHANE D. HUTCHINS, an individual,
Case No. 1:11-CV-422-REB
Plaintiff,
MEMORANDUM DECISION,
FINDINGS OF FACT, AND
CONCLUSIONS OF LAW

v.
DIRECTV CUSTOMER SERVICE, INC.,
and JOHN/JANE DOES I through X, whose
true identities are presently unknown,
Defendants.

BACKGROUND
Plaintiff Shane Hutchins (“Hutchins”) was employed by Defendant DirecTV Customer
Service, Inc. (“DirecTV”) in a “call-center,” located in Boise, Idaho. While employed, he filed a
charge of employment discrimination with the Idaho Human Rights Commission. While the
charge was being investigated, and after Hutchins had sought the assistance of co-employees in
supporting his claim, Hutchins was fired. Hutchins alleges that his firing was retaliation for his
engaging in protected activity under the American with Disabilities Act, i.e. bringing, and
investigating, his claim of discrimination. DirecTV contends that it had an honest, good faith
reason for terminating Hutchins because he was intimidating fellow employees as part of his
efforts to support his claim.
A three-day bench trial was held from January 13 through 15, 2014. These individuals
testified: Shane Hutchins, Matthew Sparks, Dr. Tyler Bowles, Donna Bickler, Dennis Buffaloe,
MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 1

Justin Sturgeon, Jeremy Punches, and Cornelius Hofman.
The case was well-tried, by counsel who were prepared and capable advocates. The
Court has carefully considered the argument of counsel, the testimony of witnesses, the exhibits
admitted, and has weighed and compared the particulars of such argument and evidence. The
Court must measure the evidence, as it has done here, to draw findings of fact and conclusions of
law as to how the Court is persuaded, or not persuaded, by the argument and evidence presented
at trial, as to how the evidence is considered against the legal standards setting out the elements
Hutchins must prove to succeed on his claims, and as to the burden of proof he must meet, or
DirecTV must meet, in seeking to prevail upon such claims, or upon affirmative defenses raised
as to such claims. Those findings and conclusions are set out to follow.
In summary, the Court rules that DirecTV terminated the employment of Hutchins in
retaliation for engaging in protected activity, and that such termination violated provisions of
federal law found at 42 U.S.C. § 12203(a) and Idaho law found at I.C. § 67-5911. That is, but
for Hutchins’ protected activity, he would not have been terminated. The Court is not persuaded
that DirecTV had a sufficient, honest, good faith reason for terminating Hutchins, so as to
insulate its decision to fire Hutchins from a claim of retaliation.
Discussed in detail infra, the Court finds that Hutchins did request a letter of support
from current and past co-employees. His doing so was protected activity, including his contact
with Donna Bickler, whose negative reaction to Hutchins’ request of her, along with the fact that
his request came contemporaneously to a semi-annual employee review period, ultimately led to
Hutchins’ firing. DirecTV’s reliance on Ms. Bickler’s subjective and unjustifiably negative
reaction to Hutchins’ interaction with Ms. Bickler was not justified given the broad protection

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 2

afforded individuals by the ADA’s anti-retaliation provision. Accordingly, the Court finds that
an award of back pay, and the value of related benefits, will be made for the benefit of Hutchins.
THE PARTIES
1.

Shane Hutchins is a former employee of DirecTV. At all relevant times, he was a
resident of the State of Idaho.

2.

DirecTV is a corporation registered to do business and doing business in the State of
Idaho. At all relevant times, DirecTV employed greater than 500 employees in each of
the 20 or more calendar weeks in the current or preceding calendar year.
JURISDICTION AND VENUE

1.

This Court has subject matter jurisdiction over this civil action based on federal question
jurisdiction, pursuant to 28 U.S.C. § 1331, and 42 U.S.C. § 2000e-5(f)(3), and
supplemental jurisdiction over the related state law claims pursuant to 28 U.S.C. § 1367.

2.

Venue is proper in this District, pursuant to 42 U.S.C. § 2000e-5(f)(3), because the
unlawful employment practice is alleged to have been committed here.

3.

The parties stipulated to have the Court act as factfinder on the claims at issue. (Dkts. 67,
70.)
FINDINGS OF FACT

1.

Hutchins was employed by DirecTV from October 18, 2004 through August 10, 2010.
At the time of his termination, he was employed as a “Team Manager,” a mid-level
management position in the Boise customer care call center.

2.

On May 11, 2010, Hutchins filed a complaint of discrimination against DirecTV with the
Idaho Human Rights Commission (“IHRC”), alleging a violation of the Americans with

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 3

Disabilities Act. In particular, Hutchins claimed that he was discriminated against
because of a physical disability stemming from irritable bowel syndrome and
diverticulitis. He alleged that DirecTV failed to accommodate his disability and
discriminated against him by issuing employment warnings, placing him on a
performance improvement plan, and passing him over for several promotions.
3.

DirecTV responded in writing to Hutchins’ complaint in the ordinary course of the IHRC
investigation into the complaint. Subsequently, the IHRC wrote to Hutchins’ counsel
with a copy of DirecTV’s response to the charge of discrimination. In that June 25, 2010
letter, the IHRC asked that Hutchins and his counsel review the response and submit a
rebuttal statement, including a request that Hutchins:
. . .write down all of those things you disagree with,
why you disagree with them and what evidence or
information you possess which will support your
position. Include any documentation as well as any
witness names, addresses and telephone numbers (if
known) and a brief narrative of facts to which you
believe each witness will testify.
Plaintiff’s Ex. 1, Defendant’s Ex. 500.

4.

After receiving this letter, and beginning around June 28, 2010, Hutchins contacted
several current and former DirecTV co-employees and asked them to provide statements
to support his claim of discrimination. Among them were: Nathan Lease, Jeremy
Punches, Jennifer Norvell (formerly, Jennifer Arocha), Justin Sturgeon, Joshua Meyer,
Eva Bowman and James LaMancha.

5.

At approximately 10:30 p.m. on July 7, 2010, Hutchins approached Donna Bickler
(another employee at DirecTV) at her work station, for the same purpose. At the time,

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 4

Ms. Bickler was a “Team Leader” and “direct report” of Hutchins, meaning she was a
direct subordinate of Hutchins, who was a “Team Manager.”
6.

Hutchins told Ms. Bickler he would be taking a break later in the work shift and that he
wanted to speak with her at that time in the nearby “team room.” When she later came to
the team room on her own break (albeit at his request), Hutchins told Ms. Bickler that he
had filed a claim of discrimination against DirecTV. He elaborated upon his medical
condition that was the underlying basis for the discrimination claim, and he then asked
her to write a letter on his behalf describing that he was a good Team Manager. He told
her to keep their conversation confidential. He also told Ms. Bickler that writing such a
letter was not something she had to do. In the conversation, his tone was even tempered
and mild.

7.

Ms. Bickler’s testimony regarding the contact Hutchins made with her is closely
consistent with how both Justin Sturgeon and Jeremy Punches testified that Hutchins had
contacted and talked with them, discussed infra.

8.

Hutchins denied contacting Ms. Bickler, but his testimony as to whether such a contact
occurred was not at all credible. In contrast, Ms. Bickler’s account of the contact he
made with her, and the content of their conversation, was entirely credible. She had no
reason to fabricate such a conversation and the details of the account track very closely
with what others employees said about similar conversations they had with Hutchins.
Ms. Bickler had nothing to gain by not being truthful in her testimony and her version of
the facts has remained consistent over time. The Court finds that Hutchins asked Ms.
Bickler to write a letter of support for his claim of discrimination.

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 5

9.

Later that evening following her conversation with Hutchins, Ms. Bickler became upset
and could not sleep. She felt Hutchins’ request put her “in the middle” between Hutchins
and DirecTV. She became tearful and anxious.

10.

The following day at work, July 8, 2010, Ms. Bickler told her co-worker, Cheryl Wees,
what had happened the prior evening and how upset she was. Ms. Wees was a Team
Manager at DirecTV at the time. Ms. Wees told Melanie Decker, who worked in the
DirecTV Human Resources office, and Human Resources Manager Dennis Buffaloe,
about what Ms. Bickler had told her. Ms. Wees encouraged Ms. Bickler to talk to
Human Resources.

11.

Ms. Bickler decided to meet with Mr. Buffaloe that same day, and when she did, she
described her conversation with Hutchins. Mr. Buffaloe felt that Ms. Bickler was very
upset and gave her the rest of the day off.

12.

On July 9, 2010, Ms. Bickler e-mailed to Mr. Buffaloe a written summary of her July 7,
2010 conversation with Hutchins, at Mr. Buffaloe’s request.

13.

On the morning of July 13, 2010, Mr. Buffaloe contacted Hutchins and took him to his
office, where they were joined by Ms. Decker. Mr. Buffaloe asked Hutchins if he had
been soliciting letters from employees concerning the lawsuit that Hutchins had filed
against DirecTV. He told Hutchins that there had been a complaint made by another
employee about such a request. The “complaint” apparently was Ms. Bickler’s report to
Mr. Buffaloe about her conversation with Hutchins, although Mr. Buffaloe did not
identify the person making the complaint.

14.

July 13, 2010 was also the morning of the so-called “Calibration Review.” In the semi-

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 6

annual Calibration Review process, Team Managers (including Hutchins) and other
higher level management employees consider, rate, and evaluate the Team Leaders,
including those they do not directly supervise. The Team Leaders to be evaluated
included Ms. Bickler.
15.

Hutchins told Mr. Buffaloe that he might have contacted a former employee but would
not say whether he had contacted any current employees.

16.

Hutchins refused to answer further questions without talking with his attorney.

17.

DirecTV placed Hutchins on paid administrative leave pending investigation of Ms.
Bickler’s complaint.

18.

Later in the afternoon on the same day of July 13, 2010, Hutchins returned to the
DirecTV workplace and spoke to Mr. Buffaloe. Hutchins gave Mr. Buffaloe a letter from
his attorney, which contained a demand that Hutchins be reinstated to active
employment. In the letter, Hutchins’ attorney stated that Hutchins had been conducting
an investigation related to his charge of employment discrimination so that Hutchins
could respond to a letter Hutchins had received from the Idaho Human Rights
Commission about his complaint. The attorney also said that Hutchins “did not discuss
his complaint or solicit information from direct reports over whom he might exert undue
influence.” Plaintiff’s Ex. 3.

19.

On July 14, 2010, Ms. Bickler was contacted by Matthew Sparks. Mr. Sparks worked in
the same group as Ms. Bickler, also under Hutchins’ direct supervision. Mr. Sparks told
Ms. Bickler that Hutchins no longer needed a letter from her. He also said that the
DirecTV Human Resources office was on a “witch hunt.” Finally, he said that if he was

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 7

ever asked about the conversation he was having with her at that moment, he would deny
that it occurred.
20.

Ms. Bickler told Mr. Buffaloe about the conversation with Mr. Sparks. At Mr.
Buffaloe’s request, she prepared a written summary of the conversation with Mr. Sparks
and e-mailed it to Mr. Buffaloe.

21.

Mr. Sparks denied that this conversation with Ms. Bickler took place. His testimony in
that regard was not credible, but Ms. Bickler’s testimony concerning the conversation
was credible. The Court finds that Mr. Sparks did engage in this conversation with Ms.
Bickler. There is no persuasive basis to argue that Ms. Bickler had fabricated the fact of
a conversation with Mr. Sparks, which he initiated. Further, the subject matter of the
conversation was entirely consistent with the posture of the events taking place between
Hutchins and DirecTV, and the fact that Hutchins had been placed on administrative
leave the previous day.

22.

On July 15, 2010, an in-house attorney with DirecTV sent a letter in response to the July
13, 2010 letter from Hutchins’ counsel. The letter contained a denial of the request to
reinstate Hutchins to active employment. The letter further indicated that such a request
would not be considered until DirecTV completed its investigation into the complaint
made against Hutchins. The letter also invited Hutchins to participate in the investigation
and directly respond to the allegations against him. Defendant’s Ex. 501.

23.

On July 27, 2010, Hutchins told Mr. Buffaloe that he would participate in DirecTV’s
investigation. In an interview with Mr. Buffaloe that followed, Hutchins said he had
requested letters from four fellow employees: Nathan Lease, Justin Sturgeon, Sherman

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 8

Williams, and Eva Bowman. (None of these individuals was directly supervised by
Hutchins, but Mr. Lease, Mr. Sturgeon and Ms. Bowman were all Team Leaders.) He did
not include Ms. Bickler in his list. He denied requesting a letter from any subordinate
employee. At the end of the interview, Hutchins was told by Mr. Buffaloe that his leave
would continue while the investigation was pending.
24.

Mr. Buffaloe then interviewed Mr. Lease, Mr. Sturgeon, and Mr. Williams. (At that
time, Ms. Bowman no longer worked at DirecTV.) Each confirmed that they had been
contacted by Hutchins and had been asked to write a letter on his behalf.

25.

Justin Sturgeon and Jeremy Punches both testified at the trial. Mr. Sturgeon was
contacted by Hutchins at work in July 2010 about writing a supportive letter in
connection with Hutchins’ claim of discrimination. Mr. Sturgeon prepared the letter but
never delivered it to Hutchins. Although Hutchins’ request made him uncomfortable, Mr.
Sturgeon did not feel threatened and knew he did not have to write any such letter.

26.

Even though he had not been identified by Hutchins as one of the co-employees Hutchins
had contacted, Jeremy Punches testified that he had been contacted by Hutchins in the
team room at DirecTV. Hutchins asked Mr. Punches to write a letter detailing how
Hutchins was in charge of a top performing team at DirecTV. Mr. Punches told Hutchins
he would think about it but, ultimately, he never wrote the letter. Hutchins’ request made
Mr. Punches feel uncomfortable and conflicted, as he did not want to interject himself
into the dispute between Hutchins and DirecTV. Although he testified that he did not
feel threatened by Hutchins, he did feel that he would be letting Hutchins down if he did
not write the letter.

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 9

27.

Hutchins sent two e-mails to Mr. Lease on July 12, 2010, requesting that Mr. Lease write
a letter in support of Hutchins. The first e-mail detailed the topics he wanted Mr. Lease
to discuss in such a letter. In the second, Hutchins forwarded as an example a letter that
James LaMancha, a former DirecTV employee, had written for Hutchins. Defendant’s
Ex. 502.

28.

Hutchins also contacted and asked for letters from Josh Meyer and Jennifer Norvell (f/k/a
Arocha).

29.

On July 30, 2010, Mr. Buffaloe informed Hutchins that the investigation was not yet
completed. A follow-up meeting was set for August 10, 2010. The meeting might have
occurred more quickly, but Hutchins was going on a previously planned vacation.

30.

Mr. Buffaloe interviewed the employees identified by Hutchins. Before the scheduled
August 10, 2010 meeting with Hutchins, Mr. Buffaloe talked to his own supervisor at
DirecTV, Bill McAllister. Mr. Buffaloe recommended to Mr. McAllister that Hutchins’
employment be terminated for the reason that Hutchins had used his position as Team
Manager to create a hostile environment for subordinate employees and because
Hutchins had used poor judgment in asking for letters of support from direct reports. Mr.
McAllister agreed that Hutchins should be terminated from employment.

31.

On August 10, 2010, Mr. Buffaloe called Hutchins and told him there was no need for a
meeting because Hutchins’ employment was terminated. Hutchins testified that he was
told by Mr. Buffaloe that he was fired for harassing and intimidating an employee.

32.

The ADA participation clause supports this Court’s finding that Hutchins was engaged
in protected activity when he sought out letters of support from his coworkers. A broad

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 10

construction of the participation clause does not permit a finding as argued and advanced
by DirecTV, i.e., that in order for his actions to be considered protected activity, there
would have needed to be a specific request from the Idaho Human Rights Commission in
its letter to Hutchins directing Hutchins to obtain letters of support from co-workers. It
suffices that Hutchins had filed a claim of discrimination and was gathering information
to support his claim, and such a finding is buttressed by the fact that Hutchins was
responding to a letter from the IHRC which summarized DirecTV’s response to his claim
of discrimination, and in which the IHRC explicitly requested Hutchins to provide his
own information to support his claim, in light of the DirecTV response.
33.

The Court finds that Hutchins did, in fact, request a letter from Ms. Bickler. He was
untruthful when he testified that he had not done so. Nonetheless, neither the fact of his
request nor the manner in which he requested the letter was confrontational in nature, and
his actions cannot be subjectively described or objectively perceived, in any reasonable
assessment, as threatening or intimidating. Accordingly, his conduct and his actions do
not cause him to lose the protection afforded by the participation clause, even if one or
more of the employees who were contacted felt uncomfortable about having been asked
to write a letter that might support Hutchins’ claim. They were free to say “no,” or to
consider further about whether they wanted to be involved, and, in fact, some of the
persons he contacted chose not to do what Hutchins had asked of them.

34.

DirecTV was not justified in terminating Hutchins by giving undue and unjustified
emphasis and credence to Ms. Bickler’s subjective anxiety over the request made by
Hutchins, when the evidence that was otherwise gathered by Mr. Buffaloe indicated

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 11

uniformly that the contacts made by Hutchins with Ms. Bickler and the other employees
were made in a non-threatening manner, occurred during a break from workplace
activities in a location away from the employee’s usual workspace, and included a
statement from Hutchins that the employee did not have to write a letter on his behalf.
35.

Hutchins’ conduct was not of a disruptive nature, and did not disrupt or impede the
business goals or business operations of DirecTV.

36.

The timing of Hutchins’ requests, prior to the Calibration Review, also does not cause
him to lose the protection of the participation clause. He received the letter from the
IHRC at the end of June and shortly thereafter began to inquire of and seek letters of
support from co-employees. There is no persuasive evidence in the record that Hutchins
timed his requests to coincide with the Calibration Review, so as to somehow heighten
the pressure upon his co-employees to respond favorably to his request. The fact of such
a connection was as easily a matter of coincidence as intent on the part of Hutchins, and
that fact must have been inescapably obvious to DirecTV.

37.

The termination of Hutchins’ employment was an adverse employment action.

38.

But for Hutchins’ protected activity, he would not have been terminated.

39.

The fact that Hutchins requested letters from “subordinate level employees,” among
others, and that this occurred prior to a review process, does not alter the otherwise
protected nature of such activity under the ADA. Only activity that is excessive or
extremely disruptive to a business is not protected. Hutchins’ conduct did not reach such
a level.

40.

Hutchins did not act in a manner that could be construed as intimidating or threatening

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 12

fellow employees regarding the statements of support that he requested. The testimony
and evidence showed, instead, that he was professional and polite. One employee, Ms.
Bickler, testified that she felt intimidated by his request, felt that it put her in a difficult
position, became worried by the request, and she brought the fact of his request and her
reaction to the request to the attention of the company. However, it was the fact of his
request – not the manner in which he made the request – that made Ms. Bickler anxious
and upset, as she felt that she was being put between Hutchins and her employer. That
scenario could be argued to exist in the context of any contact made by an employee of
another employee when engaged in protected activity concerning a claim of
discrimination. The Court accepts that Ms. Bickler’s concerns and emotional reaction to
the circumstances were likely genuinely felt, and does not find that there was any
motivation on her part to try to discredit Hutchins to gain her own advantage with her
employer, as Hutchins has argued in part. However, the Court also concludes that Ms.
Bickler’s emotional reaction to the request made by Hutchins, and her concerns that her
standing with the company was somehow at risk because of the request, were overblown
in the circumstances and were not justified by the facts. Even if DirecTV was mindful of
trying to respond to her concerns, it could have done so by assuring her that her fears
were unfounded. Instead, its decision to terminate Hutchins’ employment gave an
unjustified and unwarranted credence to her concerns even though the circumstances
could not possibly justify the measure of Ms. Bickler’s negative reaction to Hutchins’
request. Hutchins told Ms. Bickler that she had no obligation to write such a letter, and
his conversation with her was matter-of-fact and cordial, occurred away from her

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 13

workspace, and during a break period. DirecTV was not justified in using Ms. Bickler’s
unreasonable and hyper-sensitive response to his request as a basis upon which to fire
Hutchins. On the facts of this record, a single employee’s disproportionate negative
response to the mere fact of a contact from a fellow employee seeking a letter of support
to assist in responding to a request from an agency dealing with a discrimination
complaint does not justify the employer’s decision to terminate that employee,
particularly when the employer’s investigation reveals that other employees who were
also contacted under similar circumstances did not share the same overwrought concerns.
Otherwise, the ability of an employee to pursue otherwise protected activity in seeking
information and support in order to prosecute a claim of discrimination would be severely
limited, if not eviscerated, even though Congress intended to protect such activity in
enacting the ADA.
41.

The Court finds that DirecTV did not have a honest, good faith, belief that Hutchins was
intimidating fellow employees. The facts cannot possibly support such a position.
Regardless of whether Ms. Bickler subjectively felt as though she was intimidated by her
conversation with Hutchins, the manner in which Hutchins approached all the employees
to whom he spoke was professional and polite. Even Ms. Bickler said so. There was no
groundswell of fellow employees feeling threatened or intimidated by Hutchins’ contacts
with them. DirecTV’s decision to terminate Hutchins based on one employee’s
subjective reaction of somehow being “placed in the middle” cannot constitute an honest,
good faith belief that Hutchins was seeking to intimidate fellow employees to support his
discrimination claim. Neither can DirecTV’s assertion that Hutchins used poor judgment

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 14

in making such actions stand up against a fair scrutiny, particularly in the setting of an
employee seeking to obtain information to support his claim of discrimination. Hutchins
acted in an even-handed manner, he made certain to have his conversations while he and
the other employees were on a break, he had such conversations outside the presence of
other employees, and he told the persons he contacted that they did not have to write such
a letter.
42.

Hutchins would not have been terminated from his employment but for his protected
activity in contacting other employees to ask for letters to help him support his
discrimination claim against DirecTV.

43.

At the time of his termination from employment, Hutchins’ salary was $62,545 per year.

44.

DirecTV contributed $14,504 annually to Hutchins’ health benefits and $8,756 annually
in retirement benefits at the time of his termination.

45.

At all relevant times to his claims in this case, Hutchins and his family resided in
Meridian, Idaho. Hutchins has a wife and four school age children.

46.

Even before his firing, Hutchins had been looking for other employment and had applied
for a job at T-Mobile. Hutchins testified he did so because he thought DirecTV might
“retaliate” against him, but the Court does not find such testimony credible.

47.

The Court concludes from its careful review and consideration of the evidence at trial,
and finds by a preponderance of such evidence, that Hutchins would not have remained
in the employ of DirecTV for more than the remainder of the calendar year 2010 and the
calendar year 2011. Hutchins, even independent of the protected activity in which he
was involved as part of the employment discrimination complaint he had filed against

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 15

DirecTV, was a discontented, unhappy, employee who had been untruthful with his
employer, all of which created a scenario by which he was almost certain to leave
DirecTV in the near future. In support of that conclusion, the Court relies in part upon
the evidence that:
1.

Hutchins had begun to look for other employment prior to his termination and
kept an updated resume on Career Builder while he was employed with DirecTV;

2.

Hutchins and his employer had a strained relationship, in that Hutchins was
unhappy and discontented that he had not been selected for several possible
promotions that he had sought;

3.

Hutchins lied to his employer DirecTV about important details of the contacts he
had made with other employees as part of his efforts to obtain letters supporting
the claim of discrimination, including the numbers and names of those persons he
had contacted, and whether any of them directly reported to him.

4.

Hutchins recruited another employee, Matt Sparks, to make contact with Ms.
Bickler after she had made a complaint about his contact with her. There was no
purpose for Hutchins’’s enlistment of Mr. Sparks to contact Ms. Bickler, other
than to deflect any potential problems he might have created for himself by
talking to her in the first instance.

48.

After his termination, Hutchins immediately intensified his job search via online job
search engines, such as Career Builder. On August 24, 2010, Hutchins posted a letter
outlining his experience, interests, and job expectations, along with a copy of his resume,
on the Career Builder website. The Career Builder website is an internet job search and

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 16

job recruiter resource used by both job seekers and employers. The resume posted by
Hutchins contained material falsehoods about his education, including a false
representation that he had earned and received a college degree. Additionally, he had
previously posted his resume on the Career Builder website, even before he was
terminated from DirecTV.
49.

Hutchins looked for employment in the area of the Treasure Valley, in southwest Idaho.

50.

Hutchins’ job search efforts consisted of searching for jobs online and word of mouth of
possible openings from family and friends. He looked for managerial sales positions,
predominantly in call centers.

51.

In late November or early December 2010, Hutchins decided to become an independent
insurance agent for Farmers Insurance Company (“Farmers”). At that time, he
discontinued his job search for other types of positions.

52.

Hutchins earned no income in 2010 at Farmers. In 2011, he earned $15,420.

53.

Hutchins paid $6,168 annually for health insurance once employed at Farmers.

54.

Hutchins’ decision to begin work at Farmers was not a “voluntary removal from the job
market.”

55.

There was no evidence of “substantially equivalent employment” available to Hutchins.
CONCLUSIONS OF LAW

1.

During the period of his employment with DirecTV, Hutchins was entitled to rights
provided by the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. and
the Idaho Human Rights Act (“IHRA”), I.C. § 67-5901 et seq. During his employment,
DirecTV was an “employer” as that term is defined by the ADA (42 U.S.C.

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 17

§ 12111(5)(A)) and the IHRA (I.C. § 67-5902(6)).
2.

Pursuant to 42 U.S.C. § 12203(a), the ADA prohibits retaliation against an employee
because the employee made “a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing” under the ADA. Retaliation claims under the
ADA are adjudicated under the same framework as Title VII retaliation claims, 42 U.S.C.
§ 2000e-3. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1120 (9th Cir. 2000) vacated on
other grounds sub nom, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).

3.

IHRA’s anti-retaliation provision, found at I.C. § 67-5911, is identical to federal law.
Federal law provides guidance in considering such claims. Frogley v. Meridian Joint
School Dist. No. 2, 314 P.3d 613, 619 (Idaho 2013).

4.

To prove his ADA retaliation claim, Hutchins must show by a preponderance of the
evidence that: (1) he engaged in or was engaged in activity protected by the ADA, (2)
DirecTV subjected him to an adverse employment action, and (3) there was a causal link
between the protected activity and DirecTV’s adverse employment action. Brown v. City
of Tucson, 336 F.3d 1181, 1186-87 (9th Cir. 2003).

5.

Retaliation can be established under the traditional principles of “but-for” causation by
showing that the unlawful retaliation would not have occurred in the absence of the
alleged wrongful actions of his employer. Univ. of Texas Southwestern Medical Center
v. Nassar, – U.S. –, 133 S.Ct. 2517, 2534 (2013).

Hutchins was Engaged in Protected Activity
6.

The ADA prohibition of retaliation against an employee who has “participated in any
manner in an investigation, proceeding, or hearing” is known as the “participation

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 18

clause.”
7.

The purpose of the section 2000e-3 participation clause “is to protect the employee who
utilizes the tools provided by Congress to protect his rights.” Vasconcelos v. Meese, 907
F.2d 111, 113 (9th Cir. 1990) (quoting Sias v. City of Demonstration Agency, 588 F.2d
692, 695 (9th Cir. 1978)).

8.

The participation clause offers broad protection and is to be construed accordingly. See
Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) (“participation clause is
broadly construed to protect employees who utilize the tools provided by Congress to
protect their rights”).

9.

A broad construction of the ADA participation clause supports this Court’s finding that
Hutchins was engaged in protected activity when he sought out letters of support from his
coworkers. A broad construction of the participation clause does not permit a finding as
argued and advanced by DirecTV, i.e., that the letter from the IHRC to Hutchins would
have needed to expressly and specifically direct Hutchins to obtain letters of support
from individuals in order for his conduct in seeking such letters of support to be
considered protected activity. It suffices that Hutchins had filed a claim of discrimination
and was gathering information to support his claim, and such a finding is buttressed by
the fact that Hutchins was responding to a letter from the IHRC which summarized
DirecTV’s response to his claim of discrimination, and which explicitly requested
Hutchins to provide his own information to the IHRC in light of the DirecTV response.

10.

The record contains a preponderance of persuasive evidence that Hutchins had a good
faith belief that he was engaged in protected activity. As such DirecTV’s belief that he

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 19

was engaged in “bad faith behavior” is not a sufficient defense. See Sanders v. Madison
Square Garden, L.P., 525 F. Supp. 2d 364 (S.D.N.Y. 2007). If Hutchins’ conduct was
excessive and deliberately calculated to inflict needless economic hardship, he would
lose the protection of the ADA. See EEOC v. Kallirs, Phillips, Ross, Inc., 401 F. Supp.
66, 74 (D.C.N.Y. 1975). The trial record does not support such a conclusion, as further
outlined to follow.
11.

The Court finds that Hutchins did in fact request a letter from Ms. Bickler, and that he
was untruthful in his testimony when he denied having done so. Nonetheless, neither the
fact of his request nor the manner in which he requested the letter was confrontational in
nature, and could not have been subjectively described or objectively perceived, in any
reasonable assessment, as threatening or intimidating. Accordingly, his conduct and his
actions do not cause him to lose the protection afforded by the participation clause, even
if one or more of the employees who were contacted felt uncomfortable about having
been asked to write a letter that might support Hutchins’ claim. They were free to say
“no,” or to consider further about whether they wanted to be involved. Indeed, a number
of the persons contacted chose not to do what Hutchins had asked that they consider
doing.

12.

The Court does not doubt Ms. Bickler’s testimony that she was upset and felt intimidated
after Hutchins approached her and requested a letter. However, a person who is
hypersensitive, or who develops an unrealistic anxiety or concern or an otherwise
unjustified reaction to a co-employee’s request for assistance, cannot be the fulcrum for
deciding whether a plaintiff’s actions are no longer protected under the anti-retaliation

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 20

provisions of the ADA. If that were the basis for removing such protections, the intent of
Congress in enacting such protections for potentially aggrieved workers would become
contingent upon the vagaries of the potential fragility of a coworker’s emotional state and
personal sensitivities, rather than whether a plaintiff’s conduct was beyond the realm of
otherwise protected activity.
13.

DirecTV was not justified in terminating Hutchins, because DirecTV gave undue and
unjustified emphasis and credence to Ms. Bickler’s subjective anxiety over the request
made by Hutchins, when the evidence that was otherwise gathered by Mr. Buffaloe
indicated uniformly that the contacts made by Hutchins with Ms. Bickler and the other
employees were made in a non-threatening manner, occurred during a break from
workplace activities in a location away from the employee’s usual workspace, and
included a statement from Hutchins that the employee did not have to write a letter on his
behalf.

14.

The timing of Hutchins’ requests, prior to the Calibration Review, does not cause him to
lose the protection of the participation clause. He received the letter from the IHRC at
the end of June and shortly thereafter, began to inquire of and seek letters of support from
co-employees. The fact that his contacts occurred roughly contemporaneously to the
Calibration Review was inescapable, given the coincidence of the timing of his receipt of
the letter from the Idaho Human Rights Commission and the already scheduled
Calibration Review process. Such a coincidence, without more, cannot support a
conclusion that Hutchins was seeking to leverage his request for a letter of support with
the fact of the review process.

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 21

15.

In sum, while there are situations where courts have found that a plaintiff’s conduct
exceeds the statutory protection offered by the anti-retaliation provision, this case is not
one. Hutchins’ conduct was not of a disruptive nature nor did he impede the goals of
DirecTV. See Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1355 (9th Cir. 1984).

Hutchins’ Termination was an Adverse Employment Action
16.

Adverse employment action is any action “reasonably likely to deter employees from
engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000).
Adverse employment decisions include actions that materially affect compensation,
terms, conditions or privileges of employment. Little v. Windermere Relocation, Inc.,
301 F.3d 958, 970 (9th Cir. 2002). “Among those employment decisions that can
constitute an adverse employment action are termination, dissemination of a negative
employment reference, issuance of an undeserved negative performance review and
refusal to consider for promotion.” Brooks v. City of San Mateo, 229 F.3d 917, 928-29
(9th Cir. 2000).

17.

The termination of Hutchins’ employment was an adverse employment action.

Hutchins Would Not Have Been Terminated But For His Protected Activity
18.

Retaliation claims require proof by a preponderance of the evidence that the adverse
employment action would not have occurred “but for,” or in the absence of, the protected
activity. See Nassar, 133 S.Ct. at 2533.

19.

By a preponderance of the evidence, the Court is persuaded that but for Hutchins’
protected activity, he would not have been fired.

20.

Similarly, and for the same reasons, the Court finds that DirecTV violated I.C. § 67-5911

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 22

in retaliating against an “individual because he or she has opposed any practice made
unlawful by [the Idaho Human Rights Act.]” See Frogley, 314 P.3d 613, 619 (Idaho
2013)
21.

These findings are supported by numerous facts, as detailed to follow.

22.

The decision to place Hutchins on leave, and then to fire him, came on the heels of
Hutchins’ protected activity, i.e. shortly after Hutchins asked for letter statements from
his coworkers in support of his charge of discrimination. See Hubbard v. Georgia Farm
Bureau Mut. Ins. Co., 2013 WL 3964908, *1 (M.D. Ga. July 13, 2013); Taylor v.
Republic Servs., Inc., 2013 WL 5178452, *24 (E.D. Va. Sept. 16, 2013).

23.

DirecTV became aware of Hutchins’ requests for such letters on July 8, 2010. Hutchins
was fired on August 10, 2010. Only 28 days went by between DirecTV learning about
Hutchins’ requests for statements from his coworkers and his firing, and a goodly portion
of that period was consumed by a previously planned vacation taken by Hutchins.1 This
relatively short period of time is strong evidence that if Hutchins had not been requesting
letters of support from his co-workers, a protected activity under the ADA, he would not
have been fired.

24.

Mr. Buffaloe said that the decision was “based upon [Hutchins’] conduct in requesting
the letters from subordinate level employees.” Plaintiff’s Ex. 9 (Buffaloe Decl.).

25.

The fact that Hutchins requested letters from “subordinate level employees,” among
others, does not alter the otherwise protected nature of such activity under the ADA.

1

In the interim, on July 13, 2010, Hutchins was placed on paid administrative leave. As
previously held in this case, the act of placing him on such leave, by itself, was not an adverse
employment action.
MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 23

Only activity that is excessive or extremely disruptive to a business is not protected.
Hutchins’ conduct did not reach such a level.
26.

Hutchins did not act in a manner that could be construed as intimidating or threatening
fellow employees regarding the statements of support that he requested. The testimony
and evidence showed, instead, that he was professional and polite. One employee, Ms.
Bickler, testified that she felt intimidated by his request, felt that it put her in a difficult
position, became worried by the request, and she brought the fact of his request and her
reaction to the request to the attention of the company. However, it was the fact of his
request – not the manner in which he made the request – that made Ms. Bickler anxious
and upset, as she felt that she was being put between Hutchins and her employer. That
scenario could be argued to exist in the context of any contact made by an employee of
another employee when engaged in protected activity concerning a claim of
discrimination. The Court accepts that Ms. Bickler’s concerns and emotional reaction to
the circumstances were likely genuinely felt, and does not find that there was any
motivation on her part to try to discredit Hutchins to gain her own advantage with her
employer, as Hutchins has argued in part. However, the Court also concludes that Ms.
Bickler’s emotional reaction to the request made by Hutchins, and her concern that her
standing with the company was somehow at risk because of the request, were overblown
in the circumstances and were not justified by the facts. Even if DirecTV was mindful of
trying to respond to her concerns, it could have done so by assuring her that her fears
were unfounded. Instead, its decision to terminate Hutchins’ employment gave an
unjustified and unwarranted credence to her concerns even though the circumstances

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 24

could not possibly justify the measure of Ms. Bickler’s negative reaction to Hutchins’
request. Hutchins told Ms. Bickler that she had no obligation to write such a letter, and
his conversation with her was matter-of-fact and cordial, occurred away from her
workspace, and during a break period. DirecTV was not justified in using Ms. Bickler’s
unreasonable and hyper-sensitive response to his request as a basis upon which to fire
Hutchins. On the facts of this record, a single employee’s disproportionate negative
response to the mere fact of a contact from a fellow employee seeking a letter of support
to assist in responding to a request from an agency dealing with a discrimination
complaint does not justify the employer’s decision to terminate that employee,
particularly when the employer’s investigation reveals that other employees who were
also contacted under similar circumstances did not share the same overwrought concerns.
Otherwise, the ability of an employee to pursue otherwise protected activity in seeking
information and support in order to prosecute a claim of discrimination would be severely
limited, if not eviscerated, even though Congress intended to protect such activity in
enacting the ADA.
27.

DirecTV did not prove a separate, non-retaliatory reason for terminating Hutchins.
Hutchins was terminated because he requested letters from fellow employees, including
subordinate level employees, which was protected activity.

28.

In making this holding, the Court is not acting a “super-personnel department” as has
been cautioned against. See, e.g. Simms v. Oklahoma v. Dep’t of Mental Health and
Substances Abuse Servs., 165 F.3d 1321, 1330 (10th Cir. 1999) (implied overruling on
other grounds by National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002)).

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 25

Instead, the Court is holding that on these facts, for the reasons described above,
DirecTV was not justified in making the decision to terminate Hutchins’ employment.
29.

In Simms, a fired firefighter brought Title VII race discrimination and retaliation claims
and claimed the reason he was not promoted was because of his race. 165 F.3d 1321
(10th Cir. 1999). The court held that “[w]hen two candidates are equally qualified in that
they possess the objective qualifications for the position and neither is clearly better
qualified, it is within the employer’s discretion to choose among them so long as the
decision is not based on unlawful criteria.” Id. at 1330. As such, the Court is not to
second guess business judgments, but rather to prevent unlawful conduct. In applying
the reasoning of Simms to the facts before the Court, DirecTV can choose whose
employment to terminate. But what DirecTV cannot do is fire someone for an improper
reason and unlawful criteria under the law, such as engaging in protected activity. That
is unlawful retaliation.

30.

DirecTV has asserted, in the past, that its decision to terminate Hutchins did not run afoul
of the ADA’s anti-retaliation provision because it honestly believed he had intimidated
an employee, particularly in light of the upcoming Calibration Review. See Odima v.
Westin Tucson Hotel Co., 991 F.2d 595, 602 (9th Cir. 1993) (“district court must not
substitute its own judgment about whether the employment decisions were wise, or even
fair, for that of the employer.”) See Rivera v. City and County of Denver, 365 F.3d 912,
924-25 (10th Cir. 2004) (“The relevant inquiry is not whether [the employer’s] proffered
reasons were wise, fair or correct, but whether [it] honestly believed those reasons and
acted in good faith upon those beliefs.”)

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 26

31.

The Court finds that DirecTV did not have a honest, good faith, belief that Hutchins was
intimidating fellow employees. The facts simply do not support such an argument.
Regardless of whether Ms. Bickler subjectively felt as though she was intimidated by her
conversation with Hutchins, the manner in which Hutchins approached all the employees
he spoke to was professional and polite. Even Ms. Bickler testified as such. No other
employees complained of being threatened or feeling intimidated. DirecTV’s decision to
terminate Hutchins based on one employee’s subjective reaction of somehow being
“placed in the middle” cannot constitute an honest, good faith belief that Hutchins was
seeking to intimidate fellow employees to support his discrimination claim. Neither can
DirecTV’s assertion that Hutchins used poor judgment in making such actions stand up
against a fair scrutiny, particularly in the setting of an employee seeking to obtain
information to support his claim of discrimination. Hutchins acted in an even-handed
manner, he made certain to have his conversations while he and the other employees
were on a break, he had such conversations outside the presence of other employees, and
he told the persons he contacted that they did not have to write such a letter.

32.

The protection afforded by the anti-retaliation provision is broad. Hutchins’ conduct
clearly falls within the statute. DirecTV cannot take an adverse employment action
against an employee such as Hutchins for engaging in protected activity.

33.

As the court recognized in Sanders, DirecTV’s belief that Hutchins was engaging in “bad
faith behavior” is not a defense to an ADA retaliation claim. Sanders v. Madison Square
Garden, L.P., 525 F. Supp. 2d 364, 367 (S.D.N.Y. 2007). When an employer terminates
an employee because it believes the employee’s complaint of discrimination is without

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 27

merit or even malicious, as long as the employee is acting in good faith in bringing such a
complaint, the employer “must tolerate such complaints, and not retaliate because of
them.” Id. When an employer chooses to fire an employee “for making false or bad faith
accusations, he does so at his peril . . .” Id.
34.

In applying the rationale of Sanders to the facts here, Hutchins was absolutely protected
in seeking statements from his fellow employees. However, had he been acting in bad
faith and actually intimidating and threatening employees, he could lose the protection.
The facts do not support such a finding.

35.

DirecTV has asserted the defense of “unclean hands” and contends Hutchins should be
barred from equitable relief because he failed to fully disclose all the names of the Team
Leaders from whom he had requested a letter. The Court finds that the defense of
unclean hands is not applicable here.

36.

The doctrine of unclean hands requires that those seeking the Court’s protection “have
acted fairly and without fraud or deceit as to the controversy in issue.” Ellenburg v.
Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir. 1985). “What is material is not that the
plaintiff’s hands are dirty, but that he has dirtied them in acquiring the right he now
asserts, or that the manner of dirtying renders inequitable the assertion of such rights
against the defendant.” Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347,
349 (9th Cir. 1963).

37.

There is some question as to whether the defense of unclean hands applies in ADA
actions. See Kohler v. Islands Restaurants, LP, 280 F.R.D. 560 (S.D. Cal. 2012)
(discussing the Supreme Court decision McKennon v. Nashvillege Banner Publ’g Co.,

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 28

513 U.S. 352, 360 (1995) which recognized that the unclean hands defense is
inappropriate to consider against the equitable relief provided by Congress to serve
important national policies).
38.

However, even if the defense of unclean hands is properly raised on these facts, DirecTV
has not met its burden of showing by a preponderance of persuasive evidence that
Hutchins acted with fraud or deceit, and that the fraud or deceit gave rise to the right
asserted. DirecTV is correct, and has shown, that Hutchins was dishonest in some of his
statements made in response to DirecTV’s investigation and otherwise, and did not give
the names of all the individuals he contacted for letters. However, the conduct did not
give rise to the right he asserts, that is, the right to protection from retaliation for
engaging in protected conduct, and in any event, on balance does not rise to the level
where equity would require that he be precluded from seeking the relief sought in this
case because of his own less than sterling choices.

Hutchins Will Be Awarded Back Pay
39.

Under 42 U.S.C. § 2000e-5(g)(1), if the Court finds that the defendant engaged in
retaliation, “the court may enjoin the [defendant] from engaging in such unlawful
employment practice, and order such affirmative action as may be appropriate, which
may include, but is not limited to, reinstatement or hiring of employees, with or without
back pay, . . . or any other equitable relief as the court deems appropriate.” 42 U.S.C.
§ 2000e-5(g)(1). “Back pay liability shall not accrue from a date more than two years
prior to the filing of a charge with the Commission. Interim earnings or amounts
earnable with reasonable diligence by the person or persons discriminated against shall

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 29

operate to reduce the back pay otherwise allowable.” Id.
40.

Back pay awards “advance ‘Congress’ intent to make “persons whole for injuries
suffered through past discrimination.” ’ ” Caudle v. Bristow Optical Co., Inc., 224 F.3d
1014, 1020 (9th Cir. 2000) (quoting Loeffler v. Frank, 486 U.S. 549, 558 (1988) (quoting
Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)). Accordingly, “once a court
finds unlawful [retaliation], backpay should be denied only if denial ‘would not frustrate
the central statutory purposes of eradicating discrimination through the economy and
making persons whole for injuries suffered through past discrimination.’” Thorne v. City
of El Segundo, 802 F.2d 1131, 1136 (9th Cir. 1986) (quoting Albemarle Paper, 422 U.S.
at 421).

41.

Hutchins has prevailed on his ADA retaliation claim. The Court is also persuaded, by a
preponderance of the evidence, that DirecTV’s actions were in direct response to
Hutchins’’s protected activity, that the purported basis for his termination related
specifically to Hutchins’protected activity, and therefore, it is inescapable that DirecTV
intended the action it took in terminating Hutchins to be in response to his protected
activity. Accordingly, DirecTV intended to and did retaliate against Hutchins, and the
Court must order a remedy.

42.

Under the factual record of this case, the Court finds that reinstatement is not an
appropriate remedy. For a multiplicity of reasons from the trial record, which are more
fully described to follow, the Court is persuaded by a preponderance of the evidence that
Hutchins would not have remained in the employment of DirecTV for an extended period
of time, even had he not been terminated. There is no purpose to be served consistent

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 30

with the intent of Congress in enacting the ADA by reinstating Hutchins to his former
position. Rather, in the discretion of the Court for the reasons described passim in this
decision, the appropriate remedy is back pay, in an amount as justified in the
circumstances of Hutchins’ departure from his job at DirecTV.
43.

Back pay is calculated by subtracting the actual wages a discharged employee earned
subsequent to termination (if any) from the amount the employee would have earned
absent the employer’s discriminatory conduct. Gotthardt v. Nat’l R.R. Passenger Corp.,
191 F.3d 1148, 1158 (9th Cir. 1999).

44.

Absent compelling circumstances, back pay is typically computed from “the date of
discriminatory act until the date of final judgment.” Thorne v. City of El Segundo, 802
F.2d 1131, 1136 (9th Cir. 1986).

45.

In some factual circumstances, it is not appropriate to award back pay from end-to-end.
The most common are: (1) a failure to mitigate against the loss of wages; (2)
reemployment in a “substantially equivalent” position; (3) refusal of offer of
reinstatement; (4) after-acquired evidence of the plaintiff’s misconduct or fraud; or (5) an
individual’s voluntary decision to withdraw from the labor market. See 135 A.L.R. Fed.
1 (1996) (discussing reductions to awards of back pay). This case also presents factual
circumstances which do not justify an award of back pay from end-to-end.

46.

In considering the totality of the evidence before the Court at trial and the purpose of the
equitable remedy of back pay in making Hutchins “whole,” the Court is persuaded by a
preponderance of the evidence that Hutchins in entitled to an award of back pay from the
effective date of his termination, August 11, 2010, through December 31, 2011.

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 31

47.

The Court is persuaded and finds by a preponderance of the evidence at trial, that
Hutchins would not have remained in the employ of DirecTV for more than the
remainder of the calendar year 2010 and the calendar year 2011. Hutchins, even
independent of the protected activity in which he was involved as part of the employment
discrimination complaint he had filed against DirecTV, was a discontented, unhappy,
employee who had been untruthful with his employer, all of which created a scenario by
which his employment with DirecTV was certain to end in the foreseeable near future. In
support of that conclusion, the Court relies in part upon the evidence that:
1.

Hutchins had begun to look for other employment prior to his termination and
kept an updated resume on Career Builder while he was employed with DirecTV;

2.

Hutchins and his employer had a strained relationship, in that Hutchins was
unhappy and discontented that he had not been selected for several possible
promotions that he had sought;

3.

Hutchins lied to his employer DirecTV about important details of the contacts he
had made with other employees as part of his efforts to obtain letters supporting
his claim of discrimination, including the full details of who had been contacted
and whether any of those persons directly reported to him;

4.

Hutchins recruited another employee, Matt Sparks, to make contact with Ms.
Bickler after she had made a complaint about his contact with her. There was no
purpose for Hutchins’ enlistment of Mr. Sparks to contact Ms. Bickler, other than
to deflect any potential problems he might have created for himself by talking to

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 32

her in the first instance.2
48.

Awarding back pay through the end of 2011 satisfies the purpose behind back pay – to
make the plaintiff whole. Hutchins would not have remained in the employment of
DirecTV beyond December 31, 2011. Therefore, the purpose of back pay under the
Congressional intent in enacting the ADA is not served by giving him an award of back
pay beyond that date.3 To do so would yield Plaintiff an unjustifiable windfall.

49.

The Court is persuaded by the testimony of Plaintiff’s economist expert, Dr. Bowles, in
determining the amount of lost wages from Hutchins’ date of termination through the end
of 2011. See Plaintiff’s Trial Ex. 8. Dr. Bowles opined that the amount of lost wages for
the remainder of 2010 and 2011 was $57,921. See id. This amount was calculated by
deducting Hutchins’ actual earnings for the remainder of 2010 and 2011 from his
DirecTV salary.4

2

As described elsewhere in this decision, Hutchins’ conduct in talking to Ms. Bickler
was protected activity under the ADA. However, his conduct in working with Mr. Sparks to try
to quiet Ms. Bickler after she had complained to the DirecTV human resources department about
his contact with her is something else entirely. His decision to do so reflects poor judgment and
questionable motives, all of which are further evidence of an unhealthy employee/employer
relationship, and an employment relationship not likely to last.
3

The Court is mindful that it is impossible to identify what would have happened in
these circumstances with Hutchins’ employment at DirecTV had he not been terminated.
Therefore, it is similarly impossible to identify the particular date on which his employment
would have ended. In those circumstances, the Court is left do what any factfinder is left to do –
determine from the evidence which of several scenarios is most probable based upon all of the
evidence. Here, the Court is persuaded by a preponderance of the evidence that December 31,
2011 is the date by which Hutchins would no longer be working at DirecTV.
4

The Court is not persuaded by Mr. Hofman’s testimony that called for a “normal work
interruption” percentage to reduce the amount of lost wages and did not include that in its
calculation. Nor is the Court persuaded that Hutchins’ award should be “grossed up” to account
for tax consequences, as suggested by Dr. Bowles.
MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 33

50.

Back pay may include the loss of fringe benefits, such as health insurance. See, e.g., U.S.
v. City of New York, 847 F. Supp. 2d 395, 409 (E.D.N.Y. 2012). “[W]here an
employee’s fringe benefits include medical and life insurance, a plaintiff should be
compensated for the loss of those benefits if the plaintiff has purchased substitute
insurance coverage or has incurred, uninsured, out-of-pocket medical expenses for which
he or she would have been reimbursed under the employer’s insurance plan.” Galindo v.
Stoody Co., 793 F.2d 1502, 1516-17 (9th Cir. 1986). See, also, E.E.O.C. v. Farmer Bros.
Co., 31 F.3d 891, 902 (9th Cir. 1994) (applying the Galindo holding to a Title VII case).

51.

The Court will accept the calculation of the value of lost health insurance benefits made
by Dr. Bowles only as to the cost of such insurance benefits at DirecTV for the remainder
of 2010, for a total of $4,834.

52.

The Court accepts the opinion evidence of DirecTV’s expert economist, Mr. Hofman,
that Hutchins obtained other health insurance beginning in January of 2011 at a monthly
premium cost of $514, or $6,168 annually. Defendant’s Ex. 515, p. 7. Therefore,
Hutchins’ lost health insurance benefits for 2011 were $6,168.5

53.

Hutchins is entitled to recover the amount of retirement account contributions DirecTV
would have made for his benefit, had he not been terminated. See, e.g., Buonanno v.
AT&T Broadband, LLC, 313 F.Supp.2d 1069, 1083 (D. Colo. 2004); Viveros v. Donahoe,
2012 WL 6021667, *8 (C.D. Cal. Nov. 30, 2012). The Court is persuaded by the
evidence put forward by Hutchins on this subject through Dr. Bowles, which calculates a

5

The Court takes into account the $6,168 annual premium only for the 2011 calendar
year, as Hutchins began working as an agent for Farmers Insurance Company at the end of 2010.
The new health insurance coverage began contemporaneously with that change in his career.
MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 34

total lost retirement benefits amount of $10,267. See Plaintiff’s Ex. 8, Table 2.
54.

Under the ADA, a district court is authorized to grant prejudgment interest on a backpay
award. See Loeffler v. Frank, 486 U.S. 549, 558-58 (1988); Domingo v. New England
Fish Co., 727 F.2d 1429, 1446 (9th Cir. 1984). The interest rate used to calculate
prejudgment interest is within the discretion of the trial judge. W. Pac. Fisheries, Inv. v.
SS President Grant, 730 F.2d 1280, 1288 (9th Cir.1984). This discretion must be
exercised with a view to the fact that prejudgment interest is an element of compensation,
not a penalty. Id.

55.

The Court finds that such an award of prejudgment interest is justified in this case
because it will place Hutchins in the position he would have been in had he not been
terminated and compensates him for the time he was denied use of the income.

56.

“Generally, the interest rate prescribed for post judgment interest under 28 U.S.C. § 1961
is appropriate for fixing the rate of prejudgment interest unless the trial judge finds, on
substantial evidence, that the equities of that particular case require a different rate. ”
Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620, 628 (9th Cir. 2007)
(internal citation and quotation omitted).

57.

Accordingly, Plaintiff is entitled to a back pay award of $79,190, plus prejudgment
interest at the rate prescribed by 28 U.S.C. § 1961.

Hutchins Will Not be Awarded Front Pay
58.

The remedies of reinstatement and front pay are equitable remedies left to the discretion
of the court. See Traxler v. Multnomah County, 596 F.3d 1007 (9th Cir. 2010). While
reinstatement sometimes may be a preferred remedy, front pay is “appropriate when it is

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 35

impossible to reinstate the plaintiff or when it would be inappropriate due to excessive
hostility or antagonism between the parties.” Thorne v. City of El Segundo, 802 F.2d
1131, 1136 (9th Cir. 1986) (citing Fahdl v. City and County of San Francisco, 741 F.2d
1163, 1167 (9th Cir. 1984)).
59.

Front pay is intended to be a temporary award. Cassino v. Reichhold Chemicals, Inc.,
817 F.2d 1338, 1347 (9th Cir. 1987). Additionally, because there is a potential for
windfall, the use of front pay must be tempered. Gotthardt, 191 F.3d at 1157 (quoting
Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir. 1991)).

60.

There are several factors courts have considered in determining the propriety of an award
of front pay: (1) an employee’s duty to mitigate; (2) the availability of other employment
opportunities; (3) the period within which one by reasonable efforts may be re-employed;
(4) the employee’s work and life expectancy; (5) the discount tables to determine the
present value of future damages and other factors that are pertinent on prospective
damage awards; (6) the length of prior employment; (7) the permanency of the position
held; (8) the nature of the work; (9) the age and physical condition of the employee, (10)
possible consolidation of jobs; and (11) the myriad other non-discriminatory factors that
could validly affect the employer/employee relationship. See Lane v. Grant County,
2013 WL 5306986, *8 (E.D. Wash. Sept. 20, 2013).

61.

The Court finds neither reinstatement nor front pay is appropriate in this case. In accord
with the Court’s reasoning previously described as to why back pay should not be
awarded past the end of calendar year 2011, the Court also will not award front pay in
this case. For the reasons previously described, Hutchins would not have remained

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 36

employed at DirecTV under any circumstances beyond the end of 2011. Accordingly,
front pay is not appropriate.
62.

The Court finds that given the totality of the circumstances and by a preponderance of the
relevant evidence, the back pay award of $79,190 plus prejudgment interest suffices to
make Hutchins “whole.”

DirecTV Has Not Proven that Hutchins Failed to Mitigate Damages
63.

DirecTV has raised the affirmative defense of failure to mitigate damages.

64.

A plaintiff seeking an award of back pay or front pay has a duty to mitigate damages by
making reasonably diligent efforts to obtain alternative employment. Caudle, 224 F.3d at
1020 (citing 42 U.S.C. § 2000e-5(g)(1)). See Ford Motor Co. v. EEOC, 458 U.S. 219,
231 (1982).

65.

DirecTV has the burden of proving that plaintiff failed to mitigate damages. Sangster v.
United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980). To meet this burden, DirecTV
must establish: “(1) that the damages suffered by plaintiff could have been avoided, i.e.,
that there were suitable positions available which plaintiff could have discovered and for
which he was qualified; and (2) that the plaintiff failed to use reasonable care and
diligence in seeking such a position.” Sias v. City Demonstration Agency, 588 F.2d 692,
696 (9th Cir. 1978).

66.

“Substantially equivalent employment is employment which affords virtually identical
promotional opportunities, compensation, job responsibilities, working conditions and
status . . .” Lyle v. Desert Springs Hosp., 2012 WL 6562033, *6 (D. Nev. Dec. 14, 2012)
(quoting Hughes v. Mayoral, 721 F.Supp.2d 947, 967 (D. Hawaii 2010)). See also

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 37

Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir. 1990).
67.

DirecTV has not met its burden of establishing failure to mitigate. Specifically, DirecTV
did not put on ultimately persuasive evidence that there were “suitable positions available
which plaintiff could have discovered and for which he was qualified.” Without such
proof of comparable employment available to Hutchins, DirecTV cannot prevail on this
defense. See Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995) (where
employer presented no evidence as to the availability of comparable employment, district
court did not abuse its discretion in finding employer failed to meet its burden in
establishing the failure to mitigate defense).

68.

Further, DirecTV’s argument that Hutchins failed to mitigate and removed himself from
the labor market when he embarked on a new career path of selling insurance fails. Selfemployment, if it is undertaken in good faith and is a reasonable alternative to seeking
other comparable employment, may be considered permissible mitigation. See, e.g.,
Smith v. Great American Restaurants, Inc., 969 F.2d 430, 438 (7th Cir. 1992) ( jury could
conclude that plaintiff’s opening of her own restaurant was a reasonable venture); Carden
v. Westinghouse Elec. Corp., 850 F.2d 996, 1005 (3d Cir. 1988) (“[A] self-employed
person is ‘employed’ for the purposes of mitigating damages if establishing a business of
his own was a reasonable alternative to finding other comparable employment.”).

69.

The Court finds that Hutchins’ decision to embark on a new career path and go into the
insurance business was reasonable in the circumstances, particularly given the significant
economic downturn occurring in the time period of his job search, and constitutes
mitigation of damages.

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 38

70.

Hutchins’ decision to go into the insurance business was not a “voluntary removal from
the labor market” that cuts off back pay as DirecTV contends. See, e.g., Cassella v.
Mineral Park, Inc., 2010 WL 454992, *8 (D. Ariz. Feb. 9, 2010) (distinguishing between
attending law school full time or serving in the military and a civilian who is selfemployed. The latter is in the labor market and “such persons, with few exceptions are
capable of ending their employment in favor of another job opportunity.”)

Hutchins Will Not Receive Additional Damages under the IHRA
71.

Damages for violation of the Idaho Human Rights Act are outlined in Idaho Code § 675908 and include: “(a) An order to cease and desist from the unlawful practice specified
in the order; (b) An order to employ, reinstate, promote or grant other employment
benefits to a victim of unlawful employment discrimination; (c) An order for actual
damages including lost wages and benefits, provided that such back pay liability shall not
accrue more than two (2) years prior to the filing of the complaint with the commission
or the district court, whichever occurs first; (d) An order to accept or reinstate such a
person in a union; (e) An order for punitive damages, not to exceed one thousand dollars
($1,000) for each willful violation of this chapter.” I.c. § 67-5908. These damages are
the close mirror of the damages available under the federal ADA retaliation claim, except
that a claim for punitive damages can be pursued under Idaho law.

72.

Under these circumstances, the Court will not award additional damages under the IHRA
retaliation claim. To do so would permit double counting for back pay. They are fully
covered by the award made under the ADA.

73.

The Court will not award punitive damages.

It is likely that the IHRA, like the ADA,

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 39

does not allow for punitive damages on a retaliation claim. See Velasco v. Broadway
Arctic Circle, LLC, 2012 WL 2505291, * 4-5 (D. Idaho June 28, 2012). Regardless, the
array of proof at trial falls short of that needed to justify the extraordinary remedy of
punitive damages. The purpose of punitive damages is to express the outrage of society at
certain actions of the defendant, not to compensate the plaintiff. Curtis v. Firth, 850 P.2d
749, 759 (Idaho 1993). They are meant to punish, and “[i]n Idaho the punishment
rationale is disfavored.” Id.
74.

The conduct of DirecTV in this case does not rise to the level of outrageousness which is
necessary in part to justify an award of punitive damages.
CONCLUSION
The Court finds, by a preponderance of the evidence, that DirecTV terminated the

employment of Hutchins in retaliation for engaged in protected activity, specifically requesting
letters in support of his charge of discrimination filed with the Idaho Human Rights Commission
from his co-employees. By doing so, DirecTV violated the Americans with Disabilities Act, 42
U.S.C. § 12203(a), and the Idaho Human Rights Act, I.C. § 67-5911. The Court is not persuaded
that DirecTV had a sufficient, honest, good faith reason for firing Hutchins so as to insulate its
decision from a claim of retaliation.
Accordingly, the Court finds an award of back pay for the remainder of 2010 and 2011,
and the value of related benefits, is the appropriate remedy. As detailed above, the Court is
persuaded that Hutchins would not have remained employed at DirecTV longer than December
31, 2011 and that an award for this period of time suffices to make Hutchins whole, as
envisioned by the equitable nature of remedies available under the ADA. Hutchins is to be

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 40

awarded back pay in the amount of $79,190, plus prejudgment interest.
ATTORNEYS’ FEES
If Plaintiff intends to pursue an award of attorneys’ fees, he must file an appropriate
motion and supporting brief in accordance with Fed. R. Civ. P. 54(d) and the corresponding
Local Rule, within the time allowed after entry of judgment in this action.

DATED: July 21, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION, FINDINGS, AND CONCLUSIONS - 41