Hutchins v. Directv, Inc.
Filing
62
MEMORANDUM DECISION AND ORDER granting in part and denying in part 42 Motion for Summary Judgment; denying 48 Motion for Partial Summary Judgment. 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 AND
ORDER
v.
DIRECTV CUSTOMER SERVICE, INC., and
JOHN/JANE DOES I through X, whose true
identities are presently unknown,
Defendants.
Currently pending before the Court is Defendant DIRECTV Customer Service, Inc.’s
Motion for Summary Judgment (Dkt. 42) filed March 14, 2013, and Plaintiff Shane D.
Hutchins’s Motion for Partial Summary Judgment (Dkt. 48), filed March 15, 2013.
PROCEDURAL BACKGROUND
Plaintiff Shane D. Hutchins (“Plaintiff” or “Hutchins”) filed his First Amended Verified
Complaint and Demand for Jury Trial (Dkt. 10) against Defendant DIRECTV Customer
Services, Inc. (“Defendant” or DIRECTV”) on October 24, 2011. Hutchins alleged that his
rights under the Americans with Disabilities Act (“ADA”) were violated during his employment
and then subsequent termination. Specifically, he brings five claims: (1) discrimination in
violation of the ADA; (2) retaliation in violation of the ADA (failure to promote); (3) retaliation
in violation of the ADA (placed on paid administrative leave July 13, 2010); (4) retaliation in
violation of ADA (termination); and (5) negligent infliction of emotional distress. Amend.
MEMORANDUM DECISION AND ORDER - 1
Compl., Dkt. 10.
At this juncture, DIRECTV moves for summary judgment on all five counts. Hutchins
moves for partial summary judgment on Count IV (retaliation based on termination). Hutchins
concedes that his negligent infliction of emotional distress claim is not actionable because he was
an at-will employee. See Sommer v. Elmore County, 903 F. Supp. 2d 1067, 1076 (D. Idaho
2012). Accordingly, that claim is dismissed.
FACTUAL BACKGROUND
Hutchins began working at DIRECTV on or about October 15, 2004 as a Team Manager,
Customer Care, at the Defendant’s Boise Customer Care Center (“BCCC”). Amend. Compl.,
¶ 9. At the time he was hired, Steve Hawley was the Site Director at BCCC and held that
position until December 2007, when Stephen Rasmussen became the new Site Director. Dale
Decl., Ex. A, Dkt. 47-1, Hutchins Dep. Vol. I, 65:2-24; Dale Decl., Ex. B-1, Dkt. 47-2--3,
Hutchins Dep. Vol. II, 28:13-25. Thomas Zimmerman was the Senior Human Resources
Manager at BCCC from March 2008 through the end of January 2009. Dale Decl., Ex. E, Dkt.
47-6, Zimmerman Dep., 12:6-7. Dennis Buffaloe took over the position in April 2009, after
replacing an interim Human Resources Manager. Dale Decl., Ex. F, Dkt. 47-7, Buffaloe Dep.,
12:5-14.
Hutchins was diagnosed with diverticulitis in August 2005 and subsequently had surgery
related to the condition in October 2005. Amend. Compl. ¶¶ 15-16. Since March 2005,
DIRECTV has had a Workplace Accommodation Process and maintains a separate medical file
on employees who seek an accommodation for disability. There is no medical file for Hutchins
reflecting a request for accommodation. Decker Decl., ¶¶ 4-6, Ex. A. Hutchins never prepared a
MEMORANDUM DECISION AND ORDER - 2
written request for accommodation on the Human Resources’ form. Hutchins says that his
request for an accommodation was made to Mr. Zimmerman in May 2008. Hutchins stated he
had “general conversations” with Ms. Robertson about his diverticulitis and irritable bowel
syndrome (“IBS”) from a “condition perspective.” Hutchins Dep., Vol. II, 54:12-55:11.
In an e-mail dated December 14, 2007, Senior Manager Kristen Lehman approved of
Hutchins taking a two-hour meal period during his shift. Ms. Lehman understood that the twohour meal period request was made so Hutchins could spend time with his family. Lehman
Decl., Dkt. 44, ¶¶ 3-5, Ex. A.
In early May 2008, Mr. Rasmussen conducted an investigation into complaints he
received from Team Managers regarding Hutchins. He first talked to Hutchins about the
complaints on May 9, 2008. Hutchins Dep. Vol. II, Ex. 6, Dkt. 47-3. The next day, Hutchins
met with Mr. Zimmerman. Hutchins asked Zimmerman if Mr. Rasmussen was aware that
Hutchins had diverticulitis and IBS, conditions that caused him to take more time when he went
home on lunches. Mr. Zimmerman suggested that Hutchins visit with Mr. Rasmussen. Hutchins
Dep., Vol II, 80:1-25; Zimmerman Dep., 33:18-34:4.
Hutchins then talked to Mr. Rasmussen for a second time, and told him that he suffered
from diverticulitis and IBS and explained that it caused him to be late coming back from meal
breaks. Hutchins Dep., Vol. II, 85:21-86:11; Dale Decl., Ex. D, Dkt. 47-5, Rasmussen Dep.
55:20-57:15. A third meeting between Mr. Rasmussen and Hutchins occurred on May 16, 2008.
In that meeting, Hutchins was given a Performance Improvement Plan (known as a “PIP”). The
PIP included feedback Mr. Rasmussen received from Team Leaders who worked underneath
Hutchins, who said that Hutchins was not balanced in providing feedback, that his teams did not
MEMORANDUM DECISION AND ORDER - 3
feel supported by him, that he was inaccessible and difficult to find, and that he was not
responsive to e-mails. Id. Mr. Rasmussen also addressed Hutchins’ “lack of accountability,”
“extended lunch breaks (above the 2 hours agreed upon by the prior site director)”, and times
when he did not work a full 8 hour shift or did not badge-in/badge-out correctly. Mr. Rasmussen
also said that when he showed the badge-in/badge-out report to Hutchins, Hutchins contested the
information, stating that he “felt it was not accurate and that [he] had never taken such extended
lunches.” Rasmussen said further that earlier in the week, Hutchins told him that he “had
something to share with me that may explain why you were out for those extended periods of
time.” Rasmussen said in the PIP that “the fact that you initially stated the reports were wrong
but now were explaining why you weren’t at work once again causes me concern.” Hutchins
Dep. Vol. II, Ex. 6.
The PIP included a six-point development and improvement plan, which stated that if
Hutchins was not able to return from lunch or time or not able to work a full 8 hours, he must
notify his manager and REM department. Id.
Between September 2009 and March 2010, Hutchins applied for five different positions
with DIRECTV, none of which he was awarded Amend. Compl. ¶¶ 40-65.1
On May 11, 2010, Hutchins filed a complaint of discrimination against DIRECTV with
the Idaho Human Rights Commission (“IHRC”) and the United States Equal Employment
Opportunity (“EEOC”) alleging discrimination based on the ADA. Id. ¶ 70.
On or about June 25, 2010, Hutchins received a letter from IHRC via his attorney
requesting that DIRECTV’s response to his claim be reviewed and a rebuttal statement prepared,
1
These positions are discussed in more detail in the relevant sections below.
MEMORANDUM DECISION AND ORDER - 4
specifically that he “write down all 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 the facts to which you believe each witness will testify.” Hutchins Dep. Vol. II,
Ex. 15.
On July 8, 2010, DIRECTV received complaints from Donna Bickler, a Team Leader
supervised by Hutchins, who said that he had approached her the day before and requested that
she write a favorable letter regarding his performance as a supervisor, which would support his
complaint of discrimination. Ms. Bickler said she was worried that if she did not agree to do so,
he would retaliate against her, as he was her manager and in charge of her yearly review. Dale
Decl., Ex. H, Dkt. 47-9, Bickler Dep., 58:14-63:22; Buffaloe Decl., Dkt. 46, ¶¶ 5-7. Ms.
Bickler’s complaints were first reported by another employee to Mr. Buffaloe, who was then the
Senior Human Resources Manager, and then Ms. Bickler reported them directly to Mr. Buffaloe.
Id.
On July 13, 2010, Mr. Buffaloe approached Hutchins prior to the so called “calibration
review”2 scheduled for that day and asked to speak to him. Id. ¶ 11. Ms. Decker was also
present at this meeting. Id. Buffaloe asked Hutchins whether he had asked employees to write a
letter of support for his complaint of discrimination and asked him to identify who he had spoken
2
DIRECTV conducts calibration reviews of its Team Leaders twice a year. The meeting
is attended by Team Managers, Senior Managers, the Senior Human Resources Manager, the site
director and other members of senior management at BCCC. Although the Team Leaders’
immediate supervisor completes a written performance summary, the remaining Team Managers
participate directly in the calibration review and have the ability to influence reviews of Team
Leaders. Buffaloe Decl. ¶ 9.
MEMORANDUM DECISION AND ORDER - 5
with. Hutchins responded that he would need to consult his attorney prior to answering any
questions. Buffaloe described the complaint he had received from Ms. Bickler. He placed
Hutchins on paid administrative leave for refusing to participate in his investigation and Hutchins
was then escorted off the premises. Id.; Hutchins Dep. Vol. II, 183:21-184:20; Buffaloe Dep.,
86:25-88:7.
Hutchins returned to BCCC later that same day with a letter from his counsel. Amend.
Compl. ¶¶ 85-86, Ex. B; Hutchins Dep. Vol II., 184:7-20. The letter stated Hutchins was
engaged in protected activity by investigating and gathering documentation following his
complaint of discrimination filed with the IHRC and EEOC. Amend. Compl., Ex. B. Mr.
Buffaloe told Hutchins his paid administrative leave would be continued as DIRECTV had not
had a chance to review his counsel’s correspondence. Buffaloe Decl., ¶ 12.
On July 14, 2010, Ms. Bickler reported to Buffaloe that she had been approached by a
Team Leader, Matt Sparks, who reportedly told her that Hutchins no longer needed the letter as
Human Resources was on a “witch hunt.” He also stated he would deny the conversation with
her if asked about it. Id. ¶ 13. Mr. Sparks denies speaking with Ms. Bickler about any of these
matters. Pl.’s MPSJ, Ex. 7, Dkt. 48-7, Sparks Dep., 51:23-52:24.
On July 15, 2010, DIRECTV’s lawyer sent a letter to Hutchins’ lawyer responding to the
allegation that Hutchins’ suspension constituted unlawful retaliation and rejected the demand that
Hutchins be reinstated to his position. Buffaloe Decl., ¶ 14, Ex. C. DIRECTV explained in the
letter that, pending the outcome of the investigation, Hutchins had been placed on paid
investigatory suspension based on the information known to DIRECTV and Hutchins “refusal to
cooperate.” Id. Hutchins was requested to participate in an investigation of the complaints that
MEMORANDUM DECISION AND ORDER - 6
had been received. Id.
Hutchins agreed to be interviewed and he met with Buffaloe on July 27, 2010. He
admitted to requesting letters for his complaint from Nathan Lease, Eva Bowman, Justin
Sturgeon and Sherman William. He denied making any request of a “direct report” and
specifically, not Ms. Bickler. Buffaloe Decl., ¶¶ 15-16; Buffaloe Dep., 89:11-25; Hutchins Dep.
Vol. II, 157:13-165:14; 170:18-24; 171:12-175:4, 179:12-25, Ex. 17. Following that meeting,
Buffaloe interviewed the Team Leaders from whom Hutchins had admitted to requesting letters.
Those individuals described the timing and circumstances of the requests. Buffaloe Decl., ¶¶ 17,
19-20. On July 30, 2010, Buffaloe called Hutchins and informed him that DIRECTV had not
finished its investigation and a meeting was scheduled for August 10, 2010. Id. ¶ 18. Following
these interviews, Buffaloe met with his supervisor, Bill McAllister, and the decision was made to
terminate Hutchins’ employment because his conduct in requesting letters from subordinate
employees was deemed inappropriate for a manager given the fact that the requests were made in
close proximity to a calibration review in which Hutchins had ability to influence reviews of the
Team Leaders. Id. ¶ 21; Buffaloe Dep., 106:21-107:2. On August 10, 2010, Buffaloe called
Hutchins and informed him that his employment was terminated. Id. ¶ 22.
SUMMARY JUDGMENT STANDARD
One principal purpose of summary judgment “is to isolate and dispose of factually
unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a
disfavored procedural shortcut,” but is instead the “principal tool [ ] by which factually
insufficient claims or defenses [can] be isolated and prevented from going to trial with the
attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
MEMORANDUM DECISION AND ORDER - 7
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The evidence, including all reasonable inferences which may be drawn therefrom, must
be viewed in a light most favorable to the non-moving party and the Court must not make
credibility findings. See id. at 255. Direct testimony of the non-movant must be believed,
however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other
hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence.
McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine issue
of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this burden,
the moving party need not introduce any affirmative evidence (such as affidavits or deposition
excerpts) but may simply point out the absence of evidence to support the nonmoving party’s
case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a
jury verdict in his favor. See id. at 256-57. The non-moving party must go beyond the pleadings
and show “by [his] affidavits, or by the depositions, answers to interrogatories, or admissions on
file” that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.
However, the Court is “not required to comb through the record to find some reason to
deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d
1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409,
1418 (9th Cir. 1988)). Instead, the “party opposing summary judgment must direct [the Court’s]
MEMORANDUM DECISION AND ORDER - 8
attention to specific triable facts.” Southern California Gas Co. v. City of Santa Ana, 336 F.3d
885, 889 (9th Cir. 2003). Statements in a brief, unsupported by the record, cannot create an issue
of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n. 3 (9th Cir. 1995).
DISCUSSION
1.
Hutchins’ Claim of Discrimination is Dismissed
Count One of the Amended Complaint alleges that DIRECTV discriminated against
Hutchins when it: (1) issued him the written warning (PIP) on May 16, 2008; (2) failed to
accommodate and continued to mention the written warning in future performance reviews; and
(3) denied him five promotions from September 2009 through March 2010.
The ADA makes it unlawful for a covered employer to “discriminate against a qualified
individual with a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). To state a prima facie case under the ADA, a plaintiff must demonstrate that:
“(1) she is a disabled person within the meaning of the statute; (2) she is qualified, with or
without reasonable accommodation, to perform the essential functions of the job he holds or
seeks; and (3) that he suffered an adverse employment action because of his disability.”
Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154, 1156 (9th Cir. 2000); Nunes v. WalMart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). Once a plaintiff has established a prima
facie case of discrimination, under the McDonnell Douglas burden-shifting scheme, the burden
shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment
action. Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 (2003). If the employer meets this
MEMORANDUM DECISION AND ORDER - 9
burden, the burden shifts back to the plaintiff to show that the given reason is merely pretext for
discriminatory motives. Id.
A.
Hutchins’s Discrimination Claim Based on the Performance Improvement
Plan is Time-Barred
Hutchins was issued the Performance Improvement Plan (PIP) on May 16, 2008. Title
VII and the ADA both have a 300 day window after the “alleged unlawful employment practice
occurred” in which a plaintiff must file a charge with the EEOC. 42 U.S.C. § 2000e-5(e)(1); 42
U.S.C. § 12117(a); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002); Santa
Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). Idaho has a similar charge-processing
requirement, but the filing deadline is one year after the alleged unlawful practice. Idaho Code
§ 67-5907(1).
Hutchins filed his charge with the EEOC and IHRC on May 11, 2010. The charge was
filed nearly two years after receipt of the PIP. This is well over both the one-year statutory
deadline for alleged state law violations and the 300 day-deadline for alleged federal law
violations. Accordingly, Hutchins’s claim that his receipt of the PIP was a discriminatory act is
time-barred.
Hutchins attempts to argue that conduct outside the statutory time period can be
considered if the unlawful actions contribute “to [the] hostile work environment” and
accordingly his claim is timely. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105
(2002). Hutchins has not made any allegations of a hostile work environment and Morgan
expressly states that: “discrete discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges.” Id. at 113. His attempt to bootstrap the
MEMORANDUM DECISION AND ORDER - 10
PIP claim to actions that occurred within the statutory deadlines fails and this claim is dismissed.
B.
Hutchins was Not Discriminated Against in his Performance Reviews
Hutchins alleges that DIRECTV failed “to accommodate [his] disability” and “repeatedly
mentioned the written warning in future performance reviews, including and up to the 2009 full
year performance review presented to Plaintiff in February of 2010.” Amend. Compl. ¶ 109.
Allegations of discrimination by failing to accommodate a disability follow the same prima facie
case outlined above, meaning plaintiff must show an adverse employment action. See Allen v.
Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003); Moore v. Computer Associates Int’l, Inc., 653 F.
Supp. 2d 955, 962 (D. Ariz. Sept. 2, 2009).
Hutchins alleges that his 2009 performance review, which makes reference to the 2008
PIP, was a discriminatory act. In order for there to be discrimination under the ADA, there must
be an adverse employment action. Adverse employment actions include any decision by an
employer affecting “compensation, terms, conditions, or privileges of employment.” 42 U.S.C.
§ 2000e-2(a)(1); see, e.g., Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th
Cir. 2004). Any action negatively affecting the employee’s compensation may constitute an
adverse employment action, and under some circumstances a warning letter or negative review
may also constitute an adverse action. Id.
The 2009 performance assessment references Hutchins’ PIP in three instances. However,
all the references to the PIP are in the context of acknowledging Hutchins’ improvement in those
areas, namely “accountability” and “judgment/integrity,” as compared to 2008 when he received
the PIP. Amend Compl., Ex. A, pp. 9, 11, and 13. Comments such as “great improvement in
this area” and that he had done a “nice job meeting all requirements of his position” follow
MEMORANDUM DECISION AND ORDER - 11
references to the 2008 PIP. Id. Overall, Hutchins received ratings of either “successful” or
highly successful” in all areas. Id. at p. 16. While it mentioned that he had been under an
“action plan” the previous year, all comments noted his improvement in those areas. The 2009
performance assessment cannot be deemed an adverse employment action, even when viewing
the facts, and all inferences reasonably drawn from such facts, most favorably to Plaintiff.
C.
Hutchins was Not Discriminated Against when He was Not Promoted
Hutchins alleges that he was discriminated against when he was denied five promotions
for which he was qualified for between September 2009 and March 2010. Amend. Compl.
¶ 110. Refusal to promote is among the employment decisions that may constitute an adverse
employment action. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). In
construing the evidence in the light most favorable to Hutchins and assuming arguendo that
Hutchins has established a prima facie case of discrimination, the burden would shift to
DIRECTV to articulate legitimate, nondiscriminatory reasons for denying Hutchins these
promotions. DIRECTV has done just so. There are five positions that Hutchins applied for: (1)
two Senior Manager Customer Service positions in August 2009; (2) a Senior Manager Customer
Service position in November 2009; (3) a Manager Business Operations position in June 2009;
and (4) a Senior Program Manager Winback/Retention in March 2010.
DIRECTV has sufficiently met its burden of establishing legitimate, nondiscriminatory
reasons for denying these promotions to Hutchins. DIRECTV submits evidence from the Senior
Human Resources Manager detailing who was hired for each of these positions and why they
MEMORANDUM DECISION AND ORDER - 12
were chosen (except the Winback/Retention position).3 Buffaloe Decl., ¶¶ 26-40. For the
Manager of Business Operations position, the selected candidate had a stronger background,
including leading teams of employees and an educational background in systems and analytics.
Id. ¶¶ 29-30. One of the Senior Manager Customer Service positions was filled by an individual
who was already serving in that capacity but had to reapply for the position. Id. ¶¶ 31-32. The
second individual awarded that position, Lisa Mesenko, had over 11 years experience in satellite
TV broadcasting with heavy emphasis in sales and marketing and was deemed to have a superior
background in terms of scope and responsibility in her prior positions. Id. ¶¶ 35-38. The last
person selected for a Senior Manager Customer Service position had consistently strong
performance reviews and was well-respected by his peers. Id. ¶¶ 39-40. DIRECTV has
adequately articulated legitimate, nondiscriminatory reasons for not promoting Hutchins to these
positions. The other individuals were qualified for the positions and either had more experience,
better suited backgrounds or performed at higher levels than Hutchins.
Since the Court is satisfied that DIRECTV has demonstrated a legitimate
nondiscriminatory reason for why Hutchins was not promoted to these positions, the burden
shifts to Hutchins to show facts indicating that DIRECTV’s explanation is pretextual.
3
For the Senior Manager Customer Service position posted in August 2009, Kristen
Lehman, was had previously served as a Senior Manager for 29 months, was awarded the
position. The next Senior Manager Customer Service position was awarded to Lisa Mesenko,
who was an original office manager at DIRECTV and held other positions of significance. The
third Senior Manager Customer Service position was awarded to Ty Baker who served as an
interim upgrade Senior Manager prior to being selected for this position. The Manager Business
Operations position was awarded to Heidi Wagner who had the requisite technical background
the position required. Lastly, the Senior Program Manager, Winback/Retention was a corporate
position and handled by the corporate Human Resources/Staffing team in California and received
69 applications. Buffaloe Decl., ¶¶ 26-40.
MEMORANDUM DECISION AND ORDER - 13
Circumstantial evidence of pretext must be “substantial” and “specific” in order to create a
triable issue of whether the employer intended to discriminate. Godwin v. Hunt Wesson, Inc.,
150 F.3d 1217, 1222 (9th Cir. 1998). “A plaintiff can show pretext by revealing ‘weakness,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its actions that a reasonable factfinder could rationally find them unworthy
of credence and hence infer that the employer did not act for the asserted nondiscriminatory
reason.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002) (quoting
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).
As to this burden, the only evidence submitted by Hutchins, in addition to his own beliefs
that he was better qualified for these positions, is an alleged statement that Mr. Rasmussen
informed him the reason he was not selected for the Senior Manager Customer Care position was
because of “the written warning.” Hutchins contends this was a reference to the March 2008 PIP.
Hutchins Dep. Vol. I, 139:20-22, 140:6-148:13. In evaluating this evidence, which must be
construed most favorably towards Hutchins, the Court is mindful that it does not act as a “superpersonnel department” that “seconds guesses [an] employer’s business judgments.” Simms v.
Oklahoma v. Dep’t of Mental Health and Substances Abuse Servs., 165 F.3d 1321, 1330 (10th
Cir. 1999); see also Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000), Mickelsen
v. Albertson’s, Inc., 226 F. Supp. 2d 1238, 1248 (D. Idaho 2002).
Hutchins has not submitted direct evidence to support his claim of DIRECTV’s
discriminatory motive. While circumstantial evidence may be sufficient, it must be “specific”
and “substantial.” Godwin, 150 F.3d at 1222. The Supreme Court has recognized that an
employer would be entitled to judgment as a matter of law “if the record conclusively revealed
MEMORANDUM DECISION AND ORDER - 14
some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only
a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had occurred.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 148 (2000).
Unlike the facts in Reeves, where the plaintiff made a “substantial showing” that the
defendant’s actions were pretextual, the Court concludes here that Hutchins has not made a
sufficient showing to preclude summary judgment. Hutchins’ personal statements that he was
more qualified or the better candidate for the positions do not create a material factual dispute.
See Simms, 165 F.3d at 1329. It is the province of the employer, not the Court, to determine who
is best qualified to hire for certain positions. Mr. Buffaloe has averred why certain candidates
were selected instead Hutchins. None of these reasons are remotely suspect. Variously, the
selected candidates had more experience, the required educational background, or were better
performers in their current positions. The Fifth Circuit has stated that in order to establish
pretext as Hutchins seeks to do here, he would need to establish that his qualifications “leap from
the record and cry out to all who would listen that [he] was vastly - or even clearly - more
qualified for the subject job.” Price v. Fed. Express Corp., 283 F.3d 715 (5th Cir. 2002).
Hutchins’ qualifications do not “jump off the page” in comparison to the other candidates. See
Denies v. Texas Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 279 (5th Cir. 1999).
Furthermore, in regard to Mr. Rasmussen’s alleged statement that Hutchins was not
promoted because of the “written warning,” this one statement alone does not create a material
issue of fact regarding pretext. First, the written warning addressed several deficiencies in
Hutchins’ performance, not only his long lunches, but also that his team did not feel supported by
MEMORANDUM DECISION AND ORDER - 15
him and that he was inaccessible and difficult to find, both important elements of his position.
Secondly, although Mr. Rasmussen was the ultimate decision-maker, Mr. Buffaloe participated
in the interview and selection process for all but one of the positions for which Hutchins applied
(the exception being the corporate position). Buffaloe Decl. ¶¶ 26-27.
In sum, the Court concludes that Hutchins has not demonstrated the “specific and
substantial evidence of pretext” to defeat summary judgment. Godwin, 150 F.3d at 1221. There
is abundant, uncontroverted, evidence of DIRECTV’s legitimate, nondiscriminatory reasons for
not selecting Hutchins for the positions in question. Accordingly, Hutchins’ claim of
discrimination under the ADA is dismissed and DIRECTV’s motion for summary judgment is
granted on this claim.
2.
Retaliation under the ADA
Hutchins alleges three counts of retaliation under the ADA. The ADA provides: “No
person shall discriminate against any individual because such individual opposed any act or
practice made unlawful by this chapter or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
chapter.” 42 U.S.C. § 12203(a). A prima facie case of retaliation under the ADA requires proof
that the employee: (1) engaged in protected activity; (2) suffered an adverse employment action;
and (3) that there was a causal link between the two. Brown v. City of Tucson, 336 F.3d 1181,
1186-87 (9th Cir. 2003). If the employee establishes a prima facie case, the employee will avoid
summary judgment unless the employer offers legitimate reasons for the adverse employment
action, whereupon the burden shifts back to the employee to demonstrate a triable issue of fact as
to whether such reasons are pretextual. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th
MEMORANDUM DECISION AND ORDER - 16
Cir. 2008).
A.
Hutchins was not Retaliated Against when he was Denied the Promotions
In Count Two of his Amended Complaint, Hutchins alleges that he was retaliated against
when he was denied promotions within the company. He claims when he opposed his written
warning (the PIP), he was engaging in protected activity and thus retaliated against when he was
denied these promotions. Amend. Compl. ¶¶ 113-115.
The analysis of this claim mirrors the analysis above for Hutchins’ discrimination claim
based on denial of these same promotions. Even assuming for these purposes that Hutchins
presents a prima facie case of retaliation, i.e., that he was engaged in protected activity when he
opposed the PIP, that he suffered an adverse employment action when he was denied these
promotions, and that there was a causal link between the two4, DIRECTV is entitled to summary
judgment on this claim. DIRECTV has set forth legitimate, nondiscriminatory reasons, as
detailed above, for why particular individuals were hired for the positions in question instead of
Hutchins. These reasons include that the selected individuals had more or better-suited
experience, the preferred educational background, and/or a better performance record.
Further, Hutchins has failed to establish pretext. Evidence of pretext must be specific and
substantial in order to defeat summary judgment once an employer has articulated legitimate and
nondiscriminatory reasons for its employment action. As detailed above, Hutchins’ evidence that
4
In Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065, the Ninth Circuit ruled that
a nearly 18-month lapse between protected activity and an adverse employment action is simply
too long, by itself, to give rise to an inference of causation. See also Vasquez v. County of Los
Angeles, 349 F.3d 634, 646 (9th Cir. 2003) (addressing adverse employment action that occurred
13 months after protected activity). Hutchins received the PIP, which is the fulcrum of the
claims presented in his Amended Complaint, in May 2008.
MEMORANDUM DECISION AND ORDER - 17
he was better qualified and Mr. Rasmussen’s statement about the written warning do not rise to
the “specific” and “substantial” level of evidence required. See Godwin v. Hunt Wesson, Inc.,
150 F.3d 1217, 1222 (9th Cir. 1998). Again, as emphasized by several Circuits, the Court should
not act as a “super-personnel department” that “second guesses an employer’s business
judgments.” Simms v. Oklahoma Dep’t of Mental Health and Substance Abuse Servs., 165 F.3d
1321, 1330 (10th Cir. 1999); see also Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir.
2000); Price v. Fed. Express Corp., 283 F.3d 715 (5th Cir. 2002). The Court is not making a
hiring decision. Rather, the Court must look at whether DIRECTV has given legitimate reasons
for hiring the other individuals instead of Hutchins, which it has, and whether Hutchins has
created a material issue of fact on the issue of pretext, which he has not. Accordingly, DIRECTV
will be granted summary judgment on count two.
B.
Hutchins was Not Retaliated Against when Placed on Paid Leave
In Count Three, Hutchins alleges that following the charge of discrimination made to the
IHRC and participating in its investigation, DIRECTV retaliated against him when he was placed
on paid administrative leave beginning July 13, 2010. Amend. Compl. ¶¶ 118-119. Hutchins
alleges that after he filed his charge of discrimination, the IHRC sent a letter to him in which the
IHRC instructed him to identify the witnesses who could corroborate his charge and what they
would likely say. Hutchins says that in order to respond to this letter request, he talked to several
DIRECTV employees and asked them to write letters of support for him. DIRECTV contend
that one of those individuals – a Team Leader employee DIRECTV contends was subordinate to
Hutchins – was upset by the request and informed upper management at DIRECTV. An
investigation ensued, and DIRECTV contends that Hutchins refused to cooperate in the
MEMORANDUM DECISION AND ORDER - 18
investigation, which led to his being placed on paid administrative leave pending the completion
of the investigation.
The Ninth Circuit has not conclusively ruled upon whether paid administrative leave can
constitute an adverse employment action.5 However, the Court will assume for purposes of this
motion that Hutchins has proven a prima facie case of retaliation in the fact of being placed on
paid administrative leave in the circumstances of this case. Once an employee establishes a
prima facie case of retaliation, under McDonnell Douglas the burden shifts to the employer to
prove legitimate reasons for its adverse employment action. Here, DIRECTV argues that it was
justified in placing Hutchins on paid administrative leave and that its actions were not pretext for
retaliation. The Court agrees, as demonstrated in the facts of this particular claim.
On July 8, 2010, DIRECTV received complaints from Ms. Bickler, a Team Leader
supervised by Hutchins, that Hutchins had requested that she write a favorable letter for his
complaint of discrimination. Bickler Dep., 58:14-63:22; Buffaloe Decl., ¶¶ 5-7. Ms. Bickler
said she was stressed about the request and worried if she did not agree to write the letter,
Hutchins might retaliate against her because he was her manager. Bickler Dep., 58:14-63:22 (“I
just started to get a little stressed out about it, thinking, ‘Why is he asking me to do this because
he’s my manager? He monitors my calls. He’s going to do my yearly review. If I don’t tell him
yes, then he may retaliate against me or do whatever’ . . . I couldn’t sleep . . . I was very upset.”)
On July 13, 2010, Mr. Buffaloe asked Hutchins and if he had solicited letters of support
from DIRECTV employees. Hutchins responded that he “may have” and would need to speak
5
See Dahlia v. Rodriguez, 689 F.3d 1094, 1107 (9th Cir. 2012) (noting that the Ninth
Circuit has never before decided whether placement on administrative leave constitutes an
adverse employment action).
MEMORANDUM DECISION AND ORDER - 19
with his attorney prior to answering the question. Buffaloe Decl. ¶ 11. Mr. Buffaloe explained
the complaint he had received from the Team Leader and then placed Hutchins on paid
administrative leave for refusing to participate in the investigation. Id. Later that day, Hutchins
returned to DIRECTV with a letter from his attorney stating that he was engaged in protected
activity in asking for such a letter. Mr. Buffaloe told Hutchins that his paid administrative leave
would be continued while DIRECTV reviewed the letter from his counsel. Id. ¶ 12.
The next day, Ms. Bickler reported to Mr. Buffaloe that another employee had
approached her. This employee told her that Hutchins no longer needed the letter, said that
Human Resources was on a “witch hunt,” and said that he would deny the conversation he had
just had with her if asked about it. Id. ¶ 13.
On July 15, 2010, counsel for DIRECTV responded to Hutchins’ counsel, telling him in a
reply letter that Hutchins was placed on paid investigatory suspension pending the outcome of its
investigation into the complaints it had received. Id. ¶ 14, Ex. C. DIRECTV requested that
Hutchins participate in the investigation. Id. Hutchins agreed to be interviewed and he met with
Mr. Buffaloe on July 27, 2010. Hutchins acknowledged having requested letters from several
individuals, but denied making any request of a “direct report” or subordinate and specifically
denied requesting a letter from Ms. Bickler. Id. ¶¶ 15-16; Buffaloe Dep., 89:11-25; Hutchins
Dep. Vol. II, 157:13-165:14, 170:18-24, 171:12-175:4, 179:12-25, Ex. 17. Subsequent to that
meeting with Hutchins, Mr. Buffaloe also interviewed the various employees Hutchins had
contacted. Buffaloe Decl. ¶¶ 17, 19-20.
Mr. Buffaloe called Hutchins on July 30, 2010, to inform him that DIRECTV had not
completed its investigation and scheduled a meeting with Hutchins for August 10, 2010. Id.
MEMORANDUM DECISION AND ORDER - 20
¶ 18. However, on August 10, 2010 and before the scheduled meeting was to occur, Mr.
Buffaloe called Hutchins and informed him that his employment was terminated. Id. ¶ 22.
DIRECTV has articulated legitimate, nondiscriminatory reasons for placing Hutchins on
paid administrative leave. DIRECTV received a complaint that one of Hutchins’ direct reports
feared retaliation if she did not comply with his request for a letter of support. When Hutchins
refused to cooperate in DIRECTV’s investigation of the complaint, he was placed on
administrative leave pending the outcome of the investigation. It took DIRECTV less than a
month to complete its investigation. Given the facts that were before DIRECTV at the time it
placed Hutchins on administrative leave, DIRECTV’s actions were legitimate and reasonable.
Further, Hutchins has not established that DIRECTV’s reasons for placing him on
administrative leave were pretext for retaliation. Pretext must be proven by “substantial” and
“specific” evidence. Hutchins has not provided any evidence that satisfies this burden. The mere
fact that the paid administrative leave followed his complaint of discrimination and requesting
letters from other employees is not enough. An employee complained that she feared retaliation
after Hutchins’s request and DIRECTV had a duty to investigate that complaint. Hutchins has
failed to raise a triable issue of fact as to whether DIRECTV’s reasons for placing him on paid
administrative leave were pretextual. Even if Hutchins’ testimony is credited and he did not, in
fact, request a letter from Ms. Bickler, it remains that Ms. Bickler made a complaint to
DIRECTV about Hutchins and DIRECTV was obligated to investigate that complaint.
DIRECTV conducted its investigation in a reasonable amount of time. The Court concludes that
Hutchins has not shown specific and substantial evidence of pretext to defeat summary judgment
and accordingly, DIRECTV will be granted summary judgment on count three.
MEMORANDUM DECISION AND ORDER - 21
C.
There is a Question of Fact about whether DIRECTV Retaliated Against
Hutchins when he was Terminated
In his fourth cause of action, Hutchins alleges that his termination from employment on
August 10, 2010 was an act of retaliation for his charge of discrimination filed with the IHRC as
well as for gathering information in support of his charge. Amend. Compl. ¶¶ 122-123. In the
retaliation context, an adverse action is one that is “materially adverse,” in that it “well might
have dissuaded a reasonable [individual] from making or supporting a charge of discrimination.”
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). Deterrence is the
key measure of adverse action in ADA retaliation claims. Pardo v. Kaiser Permanents Hosp.,
Inc., 389 F.3d 840, 850 (9th Cir. 2004). Termination fits well within the definition of an adverse
employment action. The temporary proximity between the protected activity and the adverse
action provides a prima facie case of a causal link between the two. Id. Here, Hutchins was
terminated within a month of request for letters in support of his discrimination charge. This is
close enough in time to justify an inference of causation. See Miller v. Fairchild Indus., Inc., 885
F.2d 498, 505 (9th Cir. 1989) (fact that adverse action occurred less than 42 days after protected
activity satisfied plaintiff’s burden to show prima facie case of causation).
Because Hutchins has established a prima facie case of retaliation, the burden shifts to
DIRECTV to offer a nonretaliatory reason for his termination. DIRECTV submits that Hutchins
was terminated because he requested letters from subordinate level employees which was
deemed inappropriate given his position as a manager. Additionally, the fact that the requests
were made in close proximity to the calibration review in which Hutchins had the ability to
influence the reviews of Team Leaders informed DIRECTV’s decision to terminate his
MEMORANDUM DECISION AND ORDER - 22
employment. Buffaloe Decl. ¶ 21. This suffices to shift the burden back to Hutchins.
Hutchins has submitted circumstantial evidence that, if inferences are drawn most
favorably on his behalf, would allow a jury to conclude that DIRECTV’s proffered reasons for
Hutchins’ termination were pretextual. The Court considers that Hutchins denies asking Ms.
Bickler for a letter of support, one of her complaints did not address Hutchins but instead a third
party (Mr. Sparks), and no other employees made complaints about Hutchins’s requests for
letters. When construing these facts in the light most favorable to Hutchins, the Court finds a
jury could find in favor of Hutchins on this retaliation claim. However, that same record does
not establish retaliation as a matter of law, as Hutchins seeks the Court to rule. Accordingly,
both motions are denied on count four.
CONCLUSION
The Court finds that Hutchins’ claim of discrimination based on PIP is barred by the both
state and federal statute of limitations. Hutchins’ second basis for discrimination, the 2009
performance review, was not an adverse employment action and accordingly is dismissed. The
Court finds that DIRECTV has articulated legitimate, nondiscriminatory reasons for failing to
promote Hutchins to five positions that are the basis for part of his discrimination claim in count
one and a retaliation claim in count two. Hutchins also failed to establish pretext on these claims
and accordingly, they are dismissed. Similarly, the Court finds that DIRECTV provided a
legitimate, nondiscriminatory reason for placing Hutchins on paid administrative leave in July
2010 and he has not demonstrated pretext in order to defeat summary judgment on count three.
With respect to Hutchins’ final claim, retaliation based on his termination, the Court finds
there is a genuine issue of material fact as to whether DIRECTV’s reasons for terminating
MEMORANDUM DECISION AND ORDER - 23
Hutchins were pretextual. Accordingly, the Court denies summary judgment on count four.
ORDER
IT IS HEREBY ORDERED that:
1)
Defendant DIRECTV Customer Service, Inc.’s Motion for Summary Judgment
(Dkt. 42) is GRANTED IN PART and DENIED IN PART; and
2)
Plaintiff Shane D. Hutchins’ Motion for Partial Summary Judgment (Dkt. 48) is
DENIED.
DATED: August 5, 2013
Honorable Ronald E. Bush
U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 24
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