United States District Court, D. Idaho
SHANE D. HUTCHINS, an individual, Plaintiff,
DIRECTV CUSTOMER SERVICE, INC., and JOHN/JANE DOES I through X, whose true identities are presently unknown, Defendants
For Shane D. Hutchins, Plaintiff: Ronaldo Arthur Coulter, Idaho Employment Law Solutions, Eagle, ID.
For DirecTV Customer Services, Inc., Defendant: Elijah Martin Watkins, Jennifer Marie Reinhardt, STOEL RIVES, LLP, Boise, ID; James C Dale, STOEL RIVES, Boise, ID.
MEMORANDUM DECISION AND ORDER
Honorable Ronald E. Bush, U.S. Magistrate Judge.
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.
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. 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.
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 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 two-hour 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 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. 
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, 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"  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 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 ...