Velasco v. Broadway Artic Circle LLC et al

Filing 55

MEMORANDUM DECISION AND ORDER Defendants' Renewed Motion for Judgment as a Matter of Law or New Trial (Dkt. 53 ) is GRANTED in part and DENIED in part. The Court will grant judgment for Defendants as a matter of law on Velasco's discrimination claims. The Court will vacate the judgment amount awarded by the jury and order Defendants to pay Velasco and award of $58,977.00 on the retaliation claims. Signed by Judge B. Lynn Winmill. ((ja)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARIO VELASCO,
Case No. 4:11-cv-00102-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
BROADWAY ARCTIC CIRCLE, LLC;
and HITT ARCTIC CIRCLE,
Defendants.

The Court has before it Defendants’ Renewed Motion for Judgment as a Matter of
Law or New Trial (Dkt. 53), and the parties’ briefs on front and back pay.
ANALYSIS
1.

Discrimination Claim
At the close of Velasco’s case during the trial in this matter, Defendants moved for

judgment as a matter of law pursuant to Rule 50(a) on Velasco’s discrimination claims
and retaliation claims.1 The Court allowed the jury to consider the claims, and the jury
rendered a verdict in favor of Velasco on all claims. Defendants now renew their motion
on the discrimination claims.
Under Rule 50(b), when a court does not grant a motion for judgment as a matter
1

There were four claims – a retaliation and a discrimination claim under the ADA, and a
retaliation and a discrimination claim under the IHRA.
MEMORANDUM DECISION AND ORDER - 1

of law made under Rule 50(a), the court is considered to have submitted the action to the
jury subject to the court’s later deciding the legal questions raised by the motion. Fed. R.
Civ. P. 50(b). The party may then file a renewed motion for judgment as a matter of law
and may include a request for a new trial. Id. The Court may resolve the issue in one of
three ways: (1) allow judgment on the verdict if the jury returned a verdict; (2) order a
new trial; or (3) direct the entry of judgment as a matter of law. Id. “Judgment as a matter
of law is appropriate when the evidence presented at trial permits only one reasonable
conclusion.” Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008) (Internal
citation omitted). Thus, “[a] motion for a judgment as a matter of law is properly granted
only if no reasonable juror could find in the non-moving party’s favor.” Id. (Internal
citation omitted). Evidence must be viewed in the light most favorable to the nonmoving
party, with all reasonable inferences drawn in favor of that party. Id. at 1205-06.
Under the ADA,2 an employer may not discriminate against an employee who has
a disability by subjecting him to harassment because of his disability. As outlined in the
Court’s jury instructions, to prove his discrimination claim Velasco was required to prove
each of the following elements by a preponderance of the evidence: (1) the plaintiff is
disabled as that term is defined in the ADA; (2) he was subjected to un-welcomed
harassment in the workplace; (3) this harassment was based on his disability; (4) the

2

As explained to the jury, the elements for the IHRA discrimination claim are the same
as the elements of the ADA discrimination claim. Therefore, the two claims survive or fail
together, and the Court will analyze them under the ADA standard..
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harassment was sufficiently severe or pervasive to alter the conditions of the plaintiff’s
employment and create an abusive or hostile work environment; (5) the plaintiff
perceived the working environment to be abusive or hostile; (6) a reasonable person in
plaintiffs circumstances would consider the work environment to be abusive or hostile;
and (7) defendants’ owner knew or should have known of this harassment and failed to
take prompt, remedial action.
Defendants contend that there was insufficient evidence that Velasco was
subjected to un-welcomed harassment in the workplace based on his disability, or that the
harassment was sufficiently severe or pervasive to alter the conditions of Velasco’s
employment and create an abusive or hostile work environment. The Court agrees with
the second argument.
The Supreme Court has explained that in determining whether an environment is
sufficiently hostile or abusive, a district court must look at all the circumstances,
including the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating or just a mere offensive utterance, and whether it
unreasonably interferes with the employee’s work performance. Faragher v. City of Boca
Raton, 524 U.S. 775, 787-88 (1998) (Internal citation omitted). Simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment. Id.3 These standards

3

Although Faragher was a Title VII case, the traditional framework for analyzing Title
VII cases applies in ADA cases. Snead v. Metro, Property & Cas. Ins. Co., 237 F.3d 1080, 1093
MEMORANDUM DECISION AND ORDER - 3

properly filter out complaints “attacking the ordinary tribulations of the workplace, such
as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Id.
(Internal citation omitted). “[C]onduct must be extreme to amount to a change in the
terms and conditions of employment. . . .” Id. A derogatory nickname and occasional
insulting comments may constitute only simple teasing and isolated incidents not
sufficiently severe or pervasive to alter the terms and conditions of employment and
create an abusive work environment. Meirhofer v. Smith’s Food and Drug Centers, Inc.,
2011 WL 642664 (9th Cir. 2011).4
Velasco asserts that the evidence at trial showed that harassment toward him
permeated his employment and that it was ongoing from June 2008 until his employment
ended. However, the focus of the discrimination claim related to only two or three
instances: (1) the statement asking Velasco how long it was going to take him to get
something out to the customers; (2) the related incident where Mr. Bell made faces at
Velasco after the statement about getting something out to the customers; and (3) the
statement that all Velasco was doing with the newspaper was looking at the pictures.
Evidence of some additional general behavior was also presented at trial, but nothing

(9th Cir. 2001).
4

Meirhofer is an unpublished opinion issued after 2007. Therefore, pursuant to Ninth
circuit Rule 36-3, it is not precedent, but may be cited to the Ninth Circuit. Here, the Court does
not cite it as precedent, and the Court recognizes that the facts of the case are not set forth in the
opinion. However, the Court notes that it is a very recent decision which gives some general
guidance about how the Ninth Circuit addresses hostile work environment claims under the
ADA.
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specific. These general allegations included testimony that Velasco was treated
differently, that he did not feel like a member of the team, that he wasn’t treated right,
that his manager got upset with him especially during busy lunch hours, that Mr. Bell and
Ms. Mata made comments that Velasco was “more or less incompetent. . . or . . . stupid,”
and that Mr. Bell treated Velasco like a “slave.” Additionally, one witness testified that at
the end of the comment about Velasco only looking at the pictures in the newspaper, Mr.
Bell also called Velasco a “retard.” However, no other witnesses testified to this
statement.
Under these circumstances, the Court will enter judgment as a matter of law in
favor of Defendants on Velasco’s discrimination claim. To be clear, calling Velasco a
derogatory name and insinuating that he could not read were insulting. However, the
remainder of the allegations, even if taken as true, are so general in nature that they don’t
establish the existence of a hostile environment. Taken as a whole, these statements and
gestures amount to the sort of simple teasing and ordinary tribulations of the workplace
the Ninth Circuit alluded to in Meirhofer. They fall in line with the Ninth Circuit’s recent
suggestion that a derogatory nickname and occasional insulting comments are not
sufficiently severe or pervasive to alter the terms and conditions of employment and
create an abusive work environment. Meirhofer v. Smith’s Food and Drug Centers, Inc.,
2011 WL 642664 (9th Cir. 2011).
2.

Damages
Having granted Defendants’ motion for judgment as a matter of law on Velasco’s

MEMORANDUM DECISION AND ORDER - 5

discrimination claims, the Court will also dismiss all damages awarded on those claims.
A.

ADA Retaliation Claim

The Ninth Circuit recently stated that punitive and compensatory damages are not
available under an ADA retaliation claim because such claims are limited to the equitable
relief specified in 42 U.S.C. § 2000e-5(g)(1). Alvarado v. Cajun Operating Co., 588 F.3d
1261, 1270 (9th Cir. 2009). Moreover, Velasco was not entitled to a jury trial on that
claim, but as the Court discussed with counsel before the case was tried, that claim was
submitted to the jury along with the other claims for the purpose of potentially receiving
some guidance from the jury and in order not to confuse the jury.
Under 42 U.S.C. § 2000e-5(g)(1), if the Court finds that the defendant
intentionally 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 (payable by the employer, employment agency, or
labor organization, as the case may be, responsible for the unlawful employment
practice), 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 operate to
reduce the back pay otherwise allowable.” Id.
Here, the Court finds, as the jury did, that Defendants retaliated against Velasco.
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The evidence at trial indicated that David Bell responded angrily at Velasco upon hearing
about Velasco’s claim with the Idaho Human Rights Commission, and that he
significantly reduced Velasco’s job responsibilities and hours in retaliation. Velasco also
testified that he could not survive on the reduced income and had to look for other work.
Although Velasco later considered re-applying for his job, he did so only after he had
trouble finding other work. Thus, the Court also finds, as the jury did, that Defendants
constructively discharged Velasco. Under Idaho law, a constructive discharge occurs
when the working conditions are so intolerable that a reasonable person in the plaintiff’s
position would feel compelled to resign. Patterson v. State, Dept. Of Health & Welfare,
256 P.3d 716, 725 (Idaho 2011). Having one’s hours cut to almost nothing in retaliation
for filing a claim with the Idaho Human Rights Commission fulfills this standard. An
employee cannot be expected to tolerate employment that does not come close to
providing him with a living wage, and it is reasonable for that employee to leave such a
job for alternative employment.
Having determined that Velasco prevailed on his ADA retaliation claim, the Court
must order a remedy. Under the circumstances of this case, the Court finds that reinstating
Velasco, although allowed under 42 U.S.C. § 2000e-5(g)(1), is not the appropriate
remedy. Accordingly, the Court will order alternative equitable relief as allowed by the
statute. The Court finds that an appropriate amount of front and back pay is the best
equitable remedy. The Ninth Circuit has determined that under the ADA, back pay is an
equitable remedy to be awarded by the district court. Similarly, front pay in Title VII, and
MEMORANDUM DECISION AND ORDER - 7

thus ADA cases, is the monetary equivalent of the equitable remedy of reinstatement.
Traxler v. Multnomah Cty, 596 F.3d 1007, 1012 (9th Cir. 2010) (Citing this point is
Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001)).
Velasco presented the Court with a reasonable calculation of front and back pay.
Velasco’s expert, Dr. Slaughter, presented a loss valuation report explaining the present
value of Velasco’s past and future loss. He gave three separate findings depending on
Velasco’s retirement age of either 62, 66 or 68.
Velasco asks for an award assuming he will not retire until he is 68. However,
according to the evidence at trial, as calculated by Dr. Slaughter in his report, Velasco
was born in 1953. According to the Social Security Administration, someone born in
1953 can obtain full retirement benefits at age 66. Therefore, the Court finds that the
proper loss calculation should assume Velasco’s full retirement at age 66. Based on Dr.
Slaughter’s findings, Velasco is therefore entitled to $58,977.00 in equitable relief for
back and front pay.
Velasco also suggests he is entitled to an additional amount because his current job
may end, but the Court is not persuaded by this argument. Accordingly, the Court will
award Velasco $58,977.00 in relief for his ADA retaliation claim.
B.

IHRA Retaliation Claim

The Idaho Human Rights Act is somewhat less clear about the types of damages
available to a plaintiff who prevails on a retaliation claim. A retaliation claim is based on
Idaho Code § 67-5911, which states that “[i]t shall be unlawful for . . . any business entity
MEMORANDUM DECISION AND ORDER - 8

subject to regulation by this chapter to discriminate against any individual because he or
she has opposed any practice made unlawful by this chapter or because such individual
has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or litigation under this chapter.” I.C. § 67-5911 (Italicized emphasis added).
This statute appears to use the term “discriminate” where the term “retaliate” would make
more sense. If that is the case, when Idaho Code § 67-5901, et seq. is read as a whole it
appears that the same damages are available under Velasco’s retaliation claim as would
be available under a discrimination claim.
Such damages are outlined in Idaho Code § 67-5908, which indicates that in a civil
action filed by a person alleging unlawful discrimination, if the court finds that unlawful
discrimination has occurred, the following remedies may include, but are not limited to:
“(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 from a date
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 appear similar to
the damages available under the ADA retaliation claim, except that an order for punitive
damages, not to exceed one thousand dollars for each willful violation, is allowed.
MEMORANDUM DECISION AND ORDER - 9

Under these circumstances, the Court will not award additional damages under the
IHRA retaliation claim. First, to do so would permit double counting for front and back
pay. Therefore, the Court will not award Velasco another $58,977.00 for equitable relief
for front and back pay for the IHRA claim. Second, as explained above, the Court is not
altogether convinced that Idaho Code § 67-5901, et seq applies to retaliation claims.
Therefore, the Court will not award punitive damages either. It is just as likely that the
IHRA, like the ADA, does not allow for punitive damages on a retaliation claim.
Moreover, the Court notes that even if punitive damages are allowed under the
IHRA statute, an award of punitive damages would not be warranted under the facts of
this case. The Idaho Supreme Court has indicated that punitive damages are a peculiarity
in the law of damages. Curtis v. Firth, 850 P.2d 749, 759 (Idaho 1993) (Internal citation
omitted). The purpose of punitive damages is to express the outrage of society at certain
actions of the defendant, not to compensate the plaintiff. Id. They are meant to punish,
and “[i]n Idaho the punishment rationale is disfavored.” Id. The Idaho Supreme Court has
reasoned that “[p]unishment per se should be left to the criminal law.” Id. (Internal
citation omitted). “Even for deterrence, punitive damages are not a favorite of the law [in
Idaho], and the power to give such damages should be exercised with caution and within
the narrowest limits.” Linscott v. Rainier Nat. Life Ins. Co., 606 P.2d 958, 961 (Idaho
1980). They are awarded “only in the face of conduct on the part of the defendant which
society considers so reprehensible as to require an extraordinary remedy,” Id. There must
be evidence which “shows clearly that the action of the wrongdoer is wanton, malicious,
MEMORANDUM DECISION AND ORDER - 10

or gross and outrageous, or the facts are such as to imply malice and oppression. . . .” Id.
(Internal citation omitted).
As explained above, the evidence at trial indicated that David Bell responded
angrily at Velasco upon hearing about Velasco’s claim with the Idaho Human Rights
Commission, and that Bell significantly reduced Velasco’s job responsibilities and hours
in retaliation. This evidence was enough for Velasco to prevail on his retaliation claim.
However, it does not rise to the level of outrageous conduct which results in punitive
damages. Therefore, the Court will limit Velasco’s total award to $58,977.00.
ORDER
IT IS ORDERED:
1.

Defendants’ Renewed Motion for Judgment as a Matter of Law or New
Trial (Dkt. 53) is GRANTED in part and DENIED in part. The Court
will grant judgment for Defendants as a matter of law on Velasco’s
discrimination claims.

2.

The Court will vacate the judgment amount awarded by the jury and order
Defendants to pay Velasco and award of $58,977.00 on the retaliation
claims.

DATED: June 28, 2012

Honorable B. Lynn Winmill
MEMORANDUM DECISION AND ORDER - 11

Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 12