Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 1 of 13 DeAnne Casperson, Esq. (ISB No. 6698) dcasperson@holdenlegal.com Amanda E. Ulrich, Esq. (ISB No. 7986) aulrich@holdenlegal.com HOLDEN KIDWELL HAHN & CRAPO, P.L.L.C. P.O. Box 50130 1000 Riverwalk Drive, Suite 200 Idaho Falls, ID 83405 Telephone: (208) 523-0620 Facsimile: (208) 523-9518 Attorneys for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO DEREK HOUNSHEL, v. Plaintiff, BATTELLE ENERGY ALLIANCE, LLC, Case No. COMPLAINT AND DEMAND FOR JURY TRIAL Filing Fee: $350.00 Defendant. Plaintiff, Derek Hounshel, by and through his counsel of record Holden, Kidwell, Hahn & Crapo, P.L.L.C. and as a cause of action against Defendant Battelle Energy Alliance, LLC, alleges and complains as follows: 1- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 2 of 13 JURISDICTION AND VENUE 1. This is an action brought under the Americans with Disabilities Act ( ADA ), 42 U.S.C. 12101, et seq.; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq.; 42 U.S.C. 1981a, et seq. and the Idaho Human Rights Act, Idaho Code 67-5901, et seq. 2. This Court has jurisdiction pursuant to 28 U.S.C. 1331, 1332, 1343, and 1367; and 42 U.S.C. 2000e. 3. Venue in this action properly lies in the United States District Court for the District of Idaho, Eastern Division, pursuant to 28 U.S.C. 1391(b) because the claims arose, in this judicial district; and venue also properly lies in this district pursuant to 42 U.S.C. 2000e-5(f)(3) because the unlawful employment practices were committed in this judicial district. PARTIES 4. Plaintiff Derek Hounshel ( Hounshel ) is a male citizen and resident of the United States of America, who resides in Idaho Falls, Idaho. 5. Hounshel formerly served in the United States Navy as a Submarine Nuclear Propulsion Plant Operator and continues to serve in the Navy Reserve. 6. Defendant Battelle Energy Alliance, LLC ( BEA ) is a Delaware limited liability company with its principal place of business located in Idaho Falls, Idaho. 2- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 3 of 13 7. At all times material to this Complaint, BEA regularly employed fifteen or more persons, and was engaged in an industry affecting commerce, bringing Defendant within the ambit of Idaho Code 18-7301 and 67-5901, et seq.; 42 U.S.C. 2000e, et seq.; and 42 U.S.C. 12111. FACTS COMMON TO ALL COUNTS 8. Hounshel realleges and incorporates by reference paragraphs 1 through 7 above, as though fully incorporated herein. 9. BEA is contractor for the United States Department of Energy and is responsible for running a significant portion of the Idaho National Laboratory ( INL ). 10. Hounshel was hired by BEA on or about October 3, 2005 to work as a nuclear engineer at the INL. 11. From the time he began working for BEA through November 2010, Mr. Hounshel performed his job duties in a satisfactory manner. 12. In approximately January 2010, Hounshel was transferred to a work group managed by Debra Utterbeck ( Utterbeck ). Hounshel had been actively recruited to work in Utterbeck s work group by Utterbeck for approximately one year prior to his transfer. 13. Upon entering Utterbeck s work group, Utterbeck asked Hounshel on multiple occasions to engage in behavior he believed was unethical and inappropriate. 14. Hounshel refused to engage in the inappropriate and/or unethical acts requested by Utterbeck. As a result, Hounshel and Utterbeck s work relationship deteriorated. 3- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 4 of 13 15. In response, Utterbeck began denying Hounshel work related to his area of expertise, skills and abilities. 16. In February 2010, Hounshel began looking for another work group within BEA and began speaking with BEA s Human Resources department ( HR ) about Utterbeck s behavior. HR acknowledged problems with Utterbeck, and told Hounshel to hang in there because Utterbeck s role was being reduced and that he would be getting a new supervisor. 17. An HR representative eventually told Hounshel that she was going to gather background information to have a mediated discussion. 18. No mediation ever occurred. Instead, on or about November, 2010, Hounshel was threatened that he would be fired, placed on a performance improvement plan ( PIP ), and ordered to seek counseling from the Employee Assistance Program ( EAP ) for anger management and for allegedly creating a hostile work environment. 19. Prior to Hounshel reporting his concerns about Utterbeck to HR, Hounshel had never been informed by anyone at BEA that he had performance problems, anger management issues, or that he was causing workplace hostility. Hounshel was not permitted to contest the PIP or the allegations against him. 20. When Hounshel went to his counseling session with EAP, he was told that he was not undergoing counseling for creating a hostile work environment or for anger 4- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 5 of 13 management, but because Utterbeck claimed that Hounshel was a workplace slayer, planning to come to work and kill everyone. 21. In early January 2011, Hounshel was placed on administrative leave. He was given no letter or written communication as to why he was being placed on leave. He was only told, You were in an altercation. Hounshel was also subjected to an interview with BEA security personnel, which lasted approximately two and one-half to three hours. In the security interview, it was suggested to Hounshel by the interviewer that he was unstable and may try to hurt someone. 22. Before he was allowed to leave the security interview, Hounshel was required to consult with EAP to address the allegation that he would hurt himself or someone close to him. 23. Hounshel has never threatened to hurt himself or anyone else or had any serious altercations with a coworker. 24. When Hounshel requested an explanation as to who he was alleged to have threatened or had an altercation with, or who made those allegations against him, BEA refused to provide that information to him other than the prior statement made by EAP. 25. Although BEA would not provide such information to him, Hounshel suspects that Utterbeck, or someone under her control, asserted the false claims against him. 26. Hounshel suspected Utterbeck was responsible for the false claims because she had previously engaged in the similar actions against several other male employees, which 5- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 6 of 13 resulted in either a transfer, disciplinary action of some kind, or work building restrictions against the male employee. 27. On one prior occasion, Utterbeck had encouraged Hounshel to report that another male employee Utterbeck did not like was dangerous and might kill somebody. Hounshel refused because he had no support for such accusations. 28. On January 17, 2011, BEA required Hounshel to be evaluated by a psychologist of its choosing. The psychological assessment report concluded that there was little or no evidence from the results of this assessment of Mr. Hounshel that he is a danger to others.... 29. In February, 2011, BEA contacted Hounshel to return to work. 30. Despite the results of the January 17, 2011, assessment, BEA sequestered Hounshel in a building separate from the rest of his coworkers or those employees who do similar work after he was permitted to return to work. 31. BEA failed to pay Hounshel for a portion of the time he was not permitted to work. 32. After returning to work, Hounshel has been denied work and training opportunities. Further, with regard to one particular training opportunity, the employee in charge of the training was told by HR allegations that led him to conclude that Hounshel was unstable. Consequently, he refused to allow Hounshel to attend. 33. Hounshel s ability to work at the INL has been destroyed as a result of the false 6- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 7 of 13 allegations and actions taken by BEA. Employees point at him, security follows him, and he has been left as an outcast in a building away from his co-workers. 34. On August 22, 2011, Hounshel filed a charge of discrimination against BEA with the Equal Employment Opportunity Commission ( EEOC ), which was dually filed with the Idaho Human Rights Commission. 35. Hounshel received his Notice of Right to Sue letter on or about September 19, 2011. A true and correct copy of such Notice of Right to Sue letter is attached hereto as Exhibit A. Hounshel has exhausted his administrative remedies against BEA. 36. On or about October 24, 2011, Hounshel gave his notice he was resigning his employment with BEA. Hounshel had no choice but to resign due to the hostile work environment and discrimination to which BEA was subjecting him. COUNT ONE VIOLATION OF THE AMERICANS WITH DISABILITIES ACT PERCEIVED DISABILITY DISCRIMINATION 37. Hounshel realleges and incorporates by reference paragraphs 1 through 36 as though fully set forth herein. 38. BEA perceived and regarded Hounshel as being disabled, treating Hounshel as if he suffers from a psychological disorder. 39. The perceived disability is not transitory or minor. The perceived disability exceeds six months in duration. 7- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 8 of 13 40. Hounshel was subjected to adverse employment actions by BEA when he was required to undergo a security interview, placed on unpaid administrative leave, forced to undergo a psychological assessment, denied job training and opportunities, and sequestered to a building separate from his work group by BEA. 41. Hounshel was qualified for his job as a nuclear engineer, and was able to perform the essential functions of his job. 42. BEA took adverse employment action against Hounshel as a result of BEA regarding Hounshel as being disabled. 43. BEA constructively discharged Hounshel by destroying his reputation and ability to work at the INL. 44. As a direct and proximate result of BEA s actions and/or failures to act, Hounshel has suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. Hounshel is thereby entitled to general and compensatory damages, such amount to be proven at trial, as well as any other equitable remedies available to him. 45. BEA s conduct was malicious and oppressive, and done with reckless disregard for Hounshel s federally protected rights, for which Hounshel is entitled to punitive damages pursuant to 42 U.S.C. 1981(a). 8- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 9 of 13 COUNT TWO VIOLATION OF THE IDAHO HUMAN RIGHTS ACT DISCRIMINATION BASED UPON PERCEIVED DISABILITY 46. Hounshel realleges and incorporates by reference paragraphs, through 1 through 45 as though fully set forth herein. 47. BEA violated the Idaho Human Rights Act, Idaho Code 67-5901, et seq., by discriminating against Hounshel due to BEA s regarding Hounshel as disabled. 48. As direct and a proximate result of BEA s actions and/or failure to act, Hounshel has suffered and will continue to suffer a loss of earning and other employment benefits and job opportunities. Hounshel is therefore entitled to general and compensatory damages, such amount to be proven at trial, as well as any other equitable remedies available to him. 49. BEA s conduct was malicious and oppressive, and done with reckless disregard for Hounshel s rights, for which Hounshel is entitled to punitive damages pursuant to Idaho Code 67-5908. COUNT THREE HOSTILE WORK ENVIRONMENT BASED ON PERCEIVED DISABILITY 50. Hounshel realleges and incorporates by reference paragraphs 1 through 49 as though fully set forth herein. 51. BEA perceived Hounshel as having a psychological disability. 9- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 10 of 13 52. Hounshel was subjected to slurs, insults, stares, intimidation, jokes, and other verbal comments and gestures from other BEA employees related to his perceived psychological disability. 53. Hounshel did not welcome the conduct. 54. The conduct was sufficiently severe or pervasive to alter the conditions of Hounshel s employment and create an abusive or hostile work environment. 55. Hounshel perceived the working environment to be abusive and hostile. 56. A reasonable person in Hounshels circumstances would consider the work environment to be abusive or hostile. 57. BEA constructively discharged Hounshel by destroying his reputation and ability to work at the INL. 58. As a direct and proximate result of BEA s actions and/or failures to act, Hounshel has suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. Hounshel is thereby entitled to general and compensatory damages, such amount to be proven at trial, as well as any other equitable remedies available to him. 59. BEA s conduct was malicious and oppressive, and done with reckless disregard for Hounshel s federally protected rights, for which Hounshel is entitled to punitive damages pursuant to 42 U.S.C. 1981(a). 10- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 11 of 13 COUNT FOUR VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 REVERSE GENDER DISCRIMINATION 60. Hounshel realleges and incorporates by reference paragraphs 1 through 59 as though fully set forth herein. 61. BEA violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 1981(a), et seq., by subjecting Hounshel to reverse gender discrimination. 62. Hounshel performed his job with BEA satisfactorily. 63. Hounshel sustained several adverse employment actions by BEA, including but not limited to: a. Being required to undergo a security interview; b. Being placed on unpaid administrative leave; c. Being forced to undergo a psychological assessment; d. Being denied job training; and e. Being sequestered to a building separate from the location of his work group. 64. Hounshel was subjected to such treatment by BEA due to the false claims made about him to HR by his female direct supervisor, Utterbeck, or someone under her control. 65. Utterbeck has on several previous occasions made other false claims against male employees in order to force the male employee to transfer to another work group or to have him subjected to disciplinary action. 66. Utterbeck and BEA subjected Hounshel to the above adverse employment actions based upon his gender. 11- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 12 of 13 67. As a direct and proximate result of BEA s actions and/or failures to act, Hounshel has suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. Hounshel is thereby entitled to general and compensatory damages, such amount to be proven at trial, as well as any other equitable remedies available to him. 68. BEA s conduct was malicious and oppressive, and done with reckless disregard for Hounshel s federally protected rights, for which Hounshel is entitled to punitive damages pursuant to 42 U.S.C. 1981(a). COUNT FIVE VIOLATION OF THE IDAHO HUMAN RIGHTS ACT DISCRIMINATION BASED UPON GENDER 69. Hounshel realleges and incorporates by reference paragraphs 1 through 68 as though fully set forth herein. 70. BEA violated the Idaho Human Rights Act, Idaho Code 67-5901, et seq., by subjecting Hounshel to gender discrimination. 71. Hounshel has suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. Hounshel is thereby entitled to general and compensatory damages, such amount to be proven at trial, as well as any other equitable remedies available to her. 72. BEA s conduct was malicious and oppressive, and done with reckless disregard for Hounshel s rights, for which Hounshel is entitled to punitive damages pursuant to Idaho Code 67-5908. 12- COMPLAINT AND DEMAND FOR JURY TRIAL
Case 4:11-cv-00635-BLW Document 1 Filed 12/15/11 Page 13 of 13 ATTORNEYS FEES 73. As a further direct and proximate result of BEA s actions and/or failures to act, Hounshel has been compelled to retain the services of counsel, and has thereby incurred and will continue to incur costs and attorneys fees which should be required to be paid by BEA pursuant to Idaho Code 12-120 and 12-121; 42 U.S.C. 12205; and 42 U.S.C. 2000e-5(k). DEMAND FOR JURY TRIAL Hounshel demands trial by jury as to all issues triable to a jury in this action. PRAYER FOR RELIEF WHEREFORE, Hounshel seeks judgment against BEA as follows: 1. For compensatory and general damages as well as statutorily available damages in an amount as shall be proven at trial, and any available equitable remedies; 2. For punitive damages; 3. For attorneys fees pursuant to statute and costs of suit; and 4. For such other and further relief as the Court deems just and proper. th Dated this 15 day of December, 2011. G:\WPDATA\DC\16185 Derek Hounshel\Pleadings\Complaint.wpd /s/ DeAnne Casperson HOLDEN, KIDWELL, HAHN & CRAPO, P.L.L.C. 13- COMPLAINT AND DEMAND FOR JURY TRIAL