Crumpley v. Associated Wholesale Grocers, Inc. et al

Filing 213

MEMORANDUM AND ORDER granting 175 Motion for Partial Summary Judgment; granting in part and denying in part 177 Motion to Exclude Certain Opinion Testimony; granting in part and denying in part 179 Motion for Summary Judgment; granting 181 Motion for Summary Judgment. Signed by District Judge Daniel D. Crabtree on 04/24/2018. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JACOB A. CRUMPLEY,
Plaintiff,
v.

Case No. 16-2298-DDC

ASSOCIATED WHOLESALE
GROCERS, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Jacob Crumpley has a seizure disorder. He alleges that defendants Associated
Wholesale Grocers (“AWG”) and Clarence M. Kelley and Associates, Inc. (“CMKA”) took
adverse employment actions against him because of his seizure disorder and thus violated the
Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq. (“ADA”). Specifically,
plaintiff alleges that defendants discriminated against him because of his seizure disorder and
retaliated against him for opposing the discrimination practiced against him.
This matter is before the court on four motions. Plaintiff has filed two motions—a
Motion to Exclude Certain Opinion Testimony of Dr. Jeffery Kaplan and Dr. Michael Seeley
(Doc. 177) and a Motion for Partial Summary Judgment (Doc. 175). And each defendant has
filed a Motion for Summary Judgment (Docs. 179 & 181).
In his motions, plaintiff seeks to exclude certain opinion testimony by Dr. Jeffery Kaplan
and Dr. Michael Seeley—two of his treating neurologists. In a separate Motion for Partial
Summary Judgment, plaintiff argues that his seizure disorder, as a matter of law, is a “disability”
as the ADA defines that term.

Both defendants argue that they are entitled to summary judgment against all plaintiff’s
claims because he has failed, as a matter of law, to establish discrimination or retaliation. AWG
also argues that it was not plaintiff’s employer and the court thus cannot hold it liable on
plaintiff’s claims.
Because the court’s ruling on plaintiff’s Motion to Exclude Certain Testimony affects
the facts comprising the summary judgment facts, the court begins with that motion. For the
reasons discussed below, the court grants in part and denies in part plaintiff’s Motion to Exclude
Certain Testimony.
I.

Plaintiff’s Motion to Exclude Certain Opinion Testimony of Dr. Jeffery Kaplan and
Dr. Michael Seeley (Doc. 177)
A.

Background

Both Dr. Jeffery Kaplan and Dr. Michael Seeley are board-certified neurologists. Dr.
Kaplan has been practicing neurology since 1991. Dr. Seeley has been practicing neurology
since 1995. Individually, they have treated hundreds of patients with seizure disorders.
Plaintiff has a seizure disorder. Generally, this disorder causes him to experience
seizures every three to six months. During past seizures, plaintiff has been unconscious for as
long as 45 seconds. He characterizes the period after unconsciousness as “coming to,” and he
explained that it can take him up to five minutes to “come around.” Doc. 183-2 at 4 (Crumpley
Dep. 10:1–6). Sometimes, plaintiff does not sense any warning that he is about to experience a
seizure.
Both Dr. Kaplan and Dr. Seeley have treated plaintiff for his seizure disorder. They
treated him before, but not during, the period at issue in this lawsuit. During the treatment for
his seizure condition, plaintiff’s treating neurologists warned him about standard seizure
precautions. These precautions warned that he should not drive a vehicle, work at certain
2

heights, or work alone or be alone for extended periods of time during the six months after a
seizure. The neurologists explained that people are more likely to have another seizure during
the six months after a seizure. So, these precautions were designed to decrease plaintiff’s risk of
serious, adverse events that another seizure might pose. Because of the seriousness of the risk,
driving within six months after a seizure is one of the most important precautions.
Plaintiff agrees that it is dangerous for him to drive a car in the six months after he has
had a seizure. He understands he might crash the car and hurt himself or others. But plaintiff
did not comply with the directives from his physicians against driving a vehicle because he
needed to work and had no other way to get to work.
Both Dr. Kaplan and Dr. Seeley advised plaintiff of their understandings of the Kansas
and Missouri vehicle laws governing a person who experiences seizures. Specifically, Dr.
Seeley told plaintiff about the seizure precautions, including no driving within six months, and
he even displays posters in his office about the illegality of driving in both Kansas and Missouri.
Dr. Kaplan strictly cautioned plaintiff that it was illegal to drive during the six months after a
seizure, and that he could “seriously hurt or even kill someone if he were to have an episode or
seizure while driving.” Doc. 180-3 at 9 (Kaplan Dep. 51:23–52:5).
Dr. Kaplan opined that plaintiff should not drive at all unless he has seizure surgery and
is seizure-free for two years. He also opined that during the six months after a seizure, plaintiff
should not pursue employment where driving and working alone are conditions of employment.
Dr. Michael Ferguson, plaintiff’s primary care physician, also treated plaintiff. Dr.
Ferguson is not a neurologist and he lacks any specialized training in neurology. Dr. Ferguson
opined that a neurologist should provide seizure precautions, and specifically, those precautions

3

should warn about driving a motor vehicle. On one occasion, Dr. Ferguson told plaintiff he
should not drive until he was cleared to do so by a neurologist.
Plaintiff experienced a seizure on January 14, 2014, meaning his six-month seizure
precautions last until July 14, 2014.
On January 16, 2017, plaintiff disclosed Dr. Ferguson as a non-retained expert in this
case. See Doc. 66. On April 3, 2017, both CMKA and AWG disclosed Dr. Kaplan and Dr.
Seeley as non-retained experts. See Docs. 97, 98 & 178-2.
Plaintiff seeks to exclude certain testimony by Drs. Kaplan and Seeley. Specifically, he
seeks to exclude both neurologists from opining1 on the following topics:
1.

“[T]he effect of Plaintiff’s seizure disorder on Plaintiff’s qualification for
employment with CMKA and other employers, [and] his ability to perform job
duties at CMKA or other employers . . . .” Doc. 97 at 2 & 3.

2.

“[T]he law in Kansas and Missouri on whether individuals with seizure disorders
may operate a motor vehicle after experiencing a seizure . . . .” Doc. 178-2 at 1 &
2.

Plaintiff also seeks to exclude other opinions that the neurologists expressed in their depositions.
Namely, plaintiff seeks to exclude the following opinions by Dr. Kaplan:
3.

CMKA’s Counsel: And if Mr. Crumpley was seeking employment that required
driving a vehicle or working—well, let’s take it one at a time. If he was seeking
employment within the six months after January 14, 2014, where that job required
him to operate a motor vehicle it would be your expectation that he would
disclose his seizure disorder to his employer because of the driving requirement;
correct?
Dr. Kaplan: Yes.

1

To simplify things, the remainder of this Order refers to the challenged opinions by the numbers 1–6
as summarized in the discussion following this footnote. So, for example, “[T]he effect of Plaintiff’s
seizure disorder on Plaintiff’s qualification for employment with CMKA and other employers, [and] his
ability to perform job duties at CMKA or other employers . . . .” is called the “first opinion,” and so on.

4

CMKA’s Counsel: And same question with respect to working alone,
if he was seeking employment with an employer who was offering him
a job where he would be working alone you would expect him to
disclose his seizure condition to that employer in those circumstances;
true?
Dr. Kaplan: Yes.
Doc. 178-3 at 2 (Kaplan Dep. 56:10–57:1).
4.

CMKA’s Counsel: And if Mr. Crumpley was pursuing employment where
driving was a condition of the employment it would be your opinion to him that
he should not undertake that employment if he was within six months of a seizure;
correct?
Dr. Kaplan: Yes.
CMKA’s Counsel: And the same question I suppose as to a job that may involve
him working by himself without anyone else around, if he were to seek that type
of employment within the six-month window after a seizure it would be your
opinion that he should not pursue that employment because of the danger to
him—himself in that case?
Dr. Kaplan: Yes.
Id. at 1–2 (Kaplan Dep. 52:17–53:5).

And the following specific testimony from Dr. Seeley:
5.

AWG’s Counsel: So assuming all of that to be true and that one of his job duties
involved driving a car, based on what you knew of his epilepsy and the fact that
he had breakthrough seizures, I think reported in the medical records every three
to four months, is that a job that you would have told him he was medically
qualified to perform?
[objection omitted]
Dr. Seeley: If he was—I would not recommend operating a motor vehicle if it
was—if he was not six months seizure free.
Doc. 178-4 at 1 (Seeley Dep. 50:13–51:2).

6.

AWG’s Counsel: If Mr. Crumpley was offered a position within two months of
experiencing a seizure and he understood that one of his job duties was to drive a
car, would you expect that he would volunteer that he had a seizure disorder?
5

[objection omitted]
Dr. Seeley: I have no idea what he would do.
AWG’s Counsel: Let me ask you a different question. Would you advise him that
he should let his employer know that he was not medically able to drive a car or
shouldn’t be driving a car because he had had a seizure within the past six year -six months?
[objection omitted]
Dr. Seeley: I would advise him that he should definitely let his employer know if
he—if he is going to operate a motor vehicle, he should let his employer know
that he has—has had seizures.
Id. at 1–2 (Seeley Dep. 52:6–53:1).
B.

Analysis

Plaintiff argues that the court should exclude Drs. Kaplan and Seeley’s testimony because
it is inadmissible under Fed. R. Evid. 702 and the rubric inspired by Daubert.2 Federal Rule of
Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. The Supreme Court has described the trial judge’s role under Rule 702 in this
fashion:
Faced with a proffer of expert scientific testimony . . . the trial judge must determine
at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or determine a fact in issue. This
entails a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that reasoning or
2

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

6

methodology

properly

can

be

applied

to

the

facts

in

issue.

Daubert, 509 U.S. at 592–93. In short, federal trial judges must function as gatekeepers and
ensure that “‘an expert’s testimony both rests on a reliable foundation and is relevant to the task
at hand.’” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Daubert, 509 U.S.
at 597). To determine expert testimony’s reliability, the trial court may use the Daubert factors.
In summary form, they ask the following questions:
(1) Has the theory or technique been tested (or can it be)? (2) Has it been subjected to peer
review and publication? (3) Is there a known or potential high rate of error and are there
standards controlling the techniques of operation? (4) Is the theory or technique generally
accepted within the relevant community?
Starling v. Union Pac. R.R. Co., 203 F.R.D. 468, 476 (D. Kan. 2001) (citing Kumho Tire Co.,
526 U.S. at 149). “[T]hese factors are not exclusive [ones] and may not apply in many cases.”
Id. When the challenged experts are treating physicians—as they are here—“these factors are a
bit unwieldy.” Id.
Defendants argue that Drs. Kaplan and Seeley are exempt from the Rule 702 analysis
because they treated plaintiff. Instead, defendants argue, the challenged testimony is admissible
as lay opinions under Rule 701.
“A treating physician is not considered an expert witness if he or she testifies about
observations based on personal knowledge, including the treatment of the party.” Davoll v.
Webb, 194 F.3d 1116, 1138 (10th Cir. 1999) (citations omitted). “A treating physician’s
testimony is based on the physician’s personal knowledge of the examination, diagnosis and
treatment of a patient, and not on information acquired from outside sources.” Goeken v. WalMart Stores, Inc., No. 99-4191-SAC, 2001 WL 1159751, at *2 (D. Kan. Aug. 16, 2001)
(correction and citation omitted). A treating physician’s opinions about “the cause of any
medical condition presented in a patient, the diagnosis, the prognosis and the extent of disability,
7

if any, caused by the condition or injury” are “encompassed in the ordinary care of a patient and
do not subject the treating physician” to the requirements of an expert. Id. Also, “[a] treating
physician, even when testifying as a lay witness, may state ‘expert’ facts to the jury in order to
explain his testimony.” Davoll, 194 F.3d at 1138 (citation omitted).
Here, both Drs. Kaplan and Seeley treated plaintiff. So, they may testify about things
they observed during their treatment. And their testimony may include opinions encompassed
within their “ordinary care” of plaintiff. See Goeken, 2001 WL 1159751 at *2. But when the
challenged testimony goes beyond the scope of the physician’s personal knowledge based on his
examinations during treatment, the court must analyze it just as it would any expert testimony.
See id. (explaining, when “a treating physician is to testify on matters not based on his or her
observations made during the care and treatment of the party,” the physician must be treated as
an expert).
The plaintiff couches his arguments to exclude testimony by Drs. Kaplan and Seeley as
ones challenging three types of opinions: (1) whether plaintiff was qualified to perform the job;
(2) the nature of driving laws; and (3) what plaintiff is expected to disclose to an employer. The
court adopts this numbering convention, addressing plaintiff’s challenge in the following three
subsections.
1.

Whether Plaintiff was Qualified to Perform the Job

Plaintiff seeks to exclude testimony from Drs. Kaplan and Seeley that opine whether
plaintiff was qualified to perform his job with CMKA. This request reaches the first opinion3

3

I.e., “the effect of Plaintiff’s seizure disorder on Plaintiff’s qualification for employment with CMKA
and other employers, [and] his ability to perform job duties at CMKA or other employers . . . .”

8

and Dr. Kaplan’s fourth opinion about what employment plaintiff should pursue. Also, it
reaches the opinion the fifth question seeks to elicit from Dr. Seeley.4
First, the court provides a summary of its rulings on these opinions:
Opinion Permissible
First
May opine about plaintiff’s ability to
perform daily activities
Fourth
Fifth

Impermissible
May not opine about whether plaintiff is
qualified to perform the job
May not opine about what employment
plaintiff should pursue

May testify about recommendations
made to plaintiff during treatment
Plaintiff argues, first, that the issue whether plaintiff was qualified to perform the

essential functions of his job is an ultimate issue that the jury must decide. Then, he argues, the
questions posed to Dr. Seeley that led to the fifth opinion would confuse a jury. Finally, plaintiff
contends, Dr. Kaplan and Dr. Seeley are not qualified to provide testimony whether plaintiff was
qualified to perform the essential functions of his job because they have no specialized
knowledge and do not base their opinions on sufficient facts or data. And importantly, plaintiff
notes, the two neurologists did not use the required two-step analysis to determine whether
plaintiff is qualified under the ADA.
In their responses, defendants characterize plaintiff’s arguments differently. AWG
argues that “Drs. Kaplan and Seeley are not opining as to whether Plaintiff was qualified to

4

I.e.,
So assuming all of that to be true and that one of his job duties involved driving a car, based
on what you knew of his epilepsy and the fact that he had breakthrough seizures, I think
reported in the medical records every three to four months, is that a job that you would have
told him he was medically qualified to perform?

Doc. 178-4 at 1 (Seeley Dep. 50:13–20).

9

perform a certain job. Rather, the testimony is offered to inform the jury what activities Plaintiff
was told by his neurologists would be safe for him to perform in light of his medical condition
. . . .” Doc. 186 at 10. This, AWG contends, will “assist the jury in determining whether
Plaintiff could perform the Asset Protection Agent position safely . . . .” Id. at 11. CMKA takes
a slightly different tack. It argues that Dr. Kaplan and Dr. Seeley informed plaintiff of the
driving restriction. So, CMKA asserts, “if a position requires driving as part of the qualifications
of the job, and both doctors have personal knowledge confirming that Plaintiff cannot drive, then
they are qualified to testify that Plaintiff cannot or should not fill that particular job.” Doc. 187
at 10.
“An expert may offer an opinion even if it ‘embraces an ultimate issue to be determined
by the trier of fact.’” Starling, 203 F.R.D. at 476. “Nevertheless, an expert may not simply tell
the jury what result it should reach” by stating a “legal conclusion.” Id. (citing United States v.
Simpson, 7 F.3d 186, 188 (10th Cir. 1993)). Here, the challenged opinions come from treating
physicians—not experts. “A treating physician, even when testifying as a lay witness, may state
‘expert’ facts to the jury in order to explain his testimony.” Davoll, 194 F.3d at 1138 (citation
omitted). But the treating physician still must base his opinion on plaintiff’s ordinary care.
Goeken, 2001 WL 1159751 at *2.
Our court applied these restrictions to treating physicians in Starling. There, the court
allowed the treating physicians to “explain how the symptoms of [Post Traumatic Stress
Disorder] impair[ed] a person’s daily activities.” 203 F.R.D. at 477. But when the proponent of
the testimony proffered that the treating physicians would testify about the plaintiff’s ability to
perform the duties of a specific job, the court required the proponent to lay a foundation showing

10

that the physicians knew the job duties. Id. at 478. To reach this conclusion, Starling examined
the reasoning of Zarecki v. Nat’l R.R. Passenger Corp., 914 F. Supp. 1566 (N.D. Ill. 1996).
In Zarecki, the court treated a treating physician’s opinions as expert opinions because
the physician offered opinions about the cause of plaintiff’s injury and the injuries’ foreseeability
based on the work conditions. 914 F. Supp. at 1573. The court ruled that the physician’s
opinions were not based on personal observations because there was nothing in the record
suggesting that the physician had visited the work site. Id.
Starling followed this reasoning, requiring a factual foundation showing that the treating
physicians knew what the job entailed. 203 F.R.D. at 478. In closing, the court noted that “an
otherwise qualified social worker or physical medicine specialist could opine about the ability of
[plaintiff] to perform specific acts or job tasks.” Id.
Here, as plaintiff contends, CMKA’s argument goes too far for two distinct reasons.
CMKA’s position assumes driving is an essential function and states a legal conclusion—
whether plaintiff is qualified to perform a job. In contrast, AWG’s position is permissible.
CMKA begins by correctly asserting, “The testimony of Dr. Kaplan and Dr. Seeley
related to Plaintiff’s disability and how it affects his ability to perform day-to-day activities is
certainly under the purview of topics upon which a plaintiff’s treating physician is entitled to
opine pursuant to Fed. R. Evid. 701.” Doc. 187 at 9 (emphasis added). CMKA adds, “[i]f each
neurologist is qualified to make the determination that Plaintiff has a seizure disorder, each is
also qualified to testify about life activities a person can and cannot perform due to that seizure
disorder.” Id. (emphasis added). As AWG points out, “the testimony is offered to inform the
jury what activities Plaintiff was told by his neurologists would be safe for him to perform in
light of his medical condition and assist the jury in determining whether Plaintiff could perform

11

the Asset Protection Agent position safely . . . .” Doc. 186 at 10–11. This is permissible under
Starling’s reasoning because the neurologists confine their opinions to plaintiff’s abilities to
perform daily activities. Those opinions, in turn, will assist the jury. See Fed. R. Evid. 701 (“If a
witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is
. . . helpful to clearly understanding the witness’s testimony or to determining a fact in issue . . .
.”). But CMKA exceeds Rule 701’s scope when it argues that these neurologists should be able
to testify whether plaintiff is qualified to fill a particular job—a legal conclusion that tries to tell
the jury how to decide the case.
In sum, the testimony proffered in the first opinion is impermissible. In Starling, the
court required a reasonable foundation showing that the treating physicians knew plaintiff’s job
duties. 203 F.R.D. at 478. But here, even a reasonable foundation will not make the first
opinion permissible because the opinion would render two legal conclusions. The Starling court
did not face that issue because plaintiff sought relief for tort liability. Id. at 470. So plaintiff’s
qualification to perform a job was not an element of plaintiff’s prima facie case. Here, it is an
element. See Adair v. City of Muskogee, 823 F.3d 1297, 1304 (10th Cir. 2016) (holding, to
establish a prima facie case of discrimination, plaintiff must show: “he is qualified, with or
without reasonable accommodation by the employer, to perform the essential functions of the
job.”). So, an opinion about whether plaintiff is qualified is a legal conclusion. Also, by opining
whether plaintiff is qualified to perform the job, the neurologists necessarily must recite the job’s
essential functions—another legal conclusion and one that neither expert has special training,
skill, or experience to provide. See Adair, 823 F.3d at 1307 (holding that to determine whether
plaintiff is a qualified individual, the court, first, inquires “whether the plaintiff can perform the
essential functions of the job.”). So, to opine whether plaintiff is qualified to perform the job, the

12

treating neurologists must state two legal conclusions. Although a treating physician may state
expert facts to explain their opinions, see Davoll, 194 F.3d at 1138, he “may not simply tell the
jury what result it should reach.” Starling, 203 F.R.D. at 476.
For these reasons, the court excludes testimony from Drs. Kaplan and Seeley about
plaintiff’s qualification for employment. But defendants properly may elicit testimony from Drs.
Kaplan and Seeley about “Plaintiff’s disability and how it affects his ability to perform day-today activities”—such as driving or being alone. See id. at 477.
These neurologists also may testify about any advice they gave plaintiff about seizure
precautions. This advice would be based on “the physician’s personal knowledge of the
examination [and] diagnosis and treatment of a patient.” See Goeken, 2001 WL 1159751 at *2.
And so, treating physician testimony on such advice is permissible.
This ruling also decides the dispute over the fifth opinion. Although the question posed
by AWG’s counsel in that opinion would be improper considering the court’s ruling here, Dr.
Seeley’s response is not. Dr. Seeley responded, merely, “I would not recommend operating a
motor vehicle . . . if he was not six months seizure free.” Doc. 178-4 at 1 (Seeley Dep. 50:25–
51:2). This is the type of observation the court would expect a treating physician to express
because it consists of a recommendation based on the physician’s treatment of plaintiff. See
Davoll, 194 F.3d at 1138. So Drs. Kaplan and Seeley properly may testify about their
recommendations to plaintiff based on his condition.
To the extent that plaintiff’s request includes the fourth opinion, the court finds that
testimony about whether plaintiff should pursue employment is like asking whether he is
qualified to perform a job. It is too far removed from a permissible recommendation based on
plaintiff’s treatment and too close to stating an impermissible legal conclusion—whether

13

plaintiff was qualified to perform a job. See Starling, 203 F.R.D. at 476. The court thus
excludes this type of opinion testimony.
For these reasons, the court grants the portions of plaintiff’s motion seeking to exclude
testimony about plaintiff’s qualification to perform certain jobs and what employment he should
have pursued.
2.

The Nature of Driving Laws

Next, plaintiff seeks to exclude testimony about the second opinion—“the law in Kansas
and Missouri on whether individuals with seizure disorders may operate a motor vehicle after
experiencing a seizure . . . .”
The court summarizes its ruling in this fashion:
Opinion Permissible
Second
May testify about what they told
plaintiff about the laws

Impermissible
May not testify about the actual content
of the traffic laws

Plaintiff contends that Drs. Kaplan and Seeley are not legal experts and the driving
restriction can be communicated to the jury some other way. Thus, he contends, the court should
prohibit them from testifying that “the law is” this, or that.
Both defendants respond that these neurologists advise their patients—plaintiff,
specifically—about their understandings of Kansas and Missouri driving laws as they apply to
persons with seizure disorder. AWG adds that this testimony would help the trier of fact when
determining whether plaintiff could perform the essential functions of the position.
As a fact witness under Rule 701, “[a] treating physician’s testimony is based on the
physician’s personal knowledge of the examination, diagnosis and treatment of a patient, and not
on information acquired from outside sources.” Goeken, 2001 WL 1159751 at *2. Drs. Kaplan
and Seeley stay within those parameters when they testify about the advice they gave plaintiff

14

about the driving laws because they gave this advice while treating plaintiff. See Davoll, 194
F.3d at 1138. They exceed those parameters, however, when they testify what the law is. That
status is information acquired from an outside source and would require a legal expert’s opinion.
See Goeken, 2001 WL 1159751 at *2 (“A treating physician’s testimony is . . . not [based] on
information acquired from outside sources.” (emphasis added)). Defendants have not qualified
either neurologist as an expert in driving laws.
In short, these neurologists may testify what they told plaintiff about the laws as part of
their treating relationship with him. They may not testify that the law is what they say it is. For
these reasons, the portion of plaintiff’s motion seeking this exclusion is granted in part and
denied in part.
3.

What Plaintiff is Expected to Disclose to an Employer

Finally, plaintiff argues that the court should prohibit Drs. Kaplan and Seeley from
testifying about what plaintiff is expected to disclose to an employer. This dispute encompasses
the third opinion and the first question posed in the sixth opinion.
These are the court’s rulings on these subjects:
Opinion Permissible
Third
Sixth

May testify about recommendations
made to plaintiff during treatment

Impermissible
May not testify about what plaintiff is
expected to disclose to an employer
May not testify about what plaintiff is
expected to volunteer to an employer

Plaintiff contends that neither doctor is qualified to testify in this manner because there is
no indication that they have any training on ADA disclosures. In response, defendants argue that
these neurologists are not engaging in a legal analysis of disclosure obligations; instead,
defendants contend, their expectations of what plaintiff should have disclosed is an extension of
their advice to him about seizure precautions.

15

Defendants’ argument does not convince the court. Advice to plaintiff is something the
court already has found involves treatment. But there is no suggestion in the facts that the
neurologists conveyed the disputed expectations to plaintiff. So, the court concludes that the
neurologists’ opinions about what they expected plaintiff to disclose to a putative employer is not
based on their treatment of plaintiff. See Davoll, 194 F.3d at 1138.
But this conclusion does not resolve the dispute. In addition, the court must analyze
these opinions as it does any expert testimony offered under Daubert and Rule 702. See Goeken,
2001 WL 1159751 at *2. The court must ensure that the proffered opinions rest both on “a
reliable foundation” and are “relevant to the task at hand.’” Kumho Tire Co., 526 U.S. at 141
(quoting Daubert, 509 U.S. at 597). The court concludes that Dr. Kaplan and Dr. Seeley’s
expectations of what plaintiff should disclose to an employer are not relevant because their
expectations will not assist the trier of fact. See Daubert, 509 U.S. at 592–93 (“the expert [must]
testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in
issue”). With all respect for the physicians’ medical training and experience, their opinions on
this subject are no better informed than any other member of our society. And permitting two
credentialed witnesses to opine about this question might mislead the jury to think that their
opinions matter because of their medical acumen.
Even if Dr. Kaplan and Dr. Seeley’s expectations somehow were relevant, they do not
rest on a reliable foundation. They do no rest on special knowledge or training. For these
reasons, the court excludes testimony from these witnesses about what plaintiff was expected to
disclose to an employer, as presented in the third opinion.
This ruling also decides the question for the sixth opinion. There, AWG’s counsel first
asked Dr. Seeley what he expected plaintiff to volunteer to an employer about his condition. The

16

court discerns no real difference between “disclose” and “volunteer” in this context. So this
question is improper in light of the court’s ruling. But, in contrast, the second question AWG’s
counsel asked Dr. Seeley in the sixth opinion is permissible. AWG’s counsel asked, “Would you
advise [plaintiff] that he should let his employer know that he was not medically able to drive a
car or shouldn’t be driving a car because he had had a seizure within the past . . . six months?”
The court already has determined that these neurologists may testify properly about advice they
would give plaintiff based on their treatment of him.
For these reasons, the court grants plaintiff’s Motion to Exclude (Doc. 177) in part and
denies it in part, as described in detail in this Order.
II.

Motions for Summary Judgment
Now, the court turns to the motions for summary judgment. Each party requests

summary judgment. Plaintiff seeks partial summary judgment on the issue whether his seizure
disorder qualifies as a disability under the ADA. Both defendants ask for summary judgment
against plaintiff’s two claims. And AWG also seeks summary judgment on the issue whether it
was plaintiff’s employer.
For the reasons explained in the rest of this Order, the court grants plaintiff partial
summary judgment, grants AWG summary judgment, and grants in part and denies in part
CMKA’s Motion for Summary Judgment.

17

A.

Facts5

The following facts are either stipulated facts taken from the Pretrial Order (Doc. 173),
uncontroverted or, where controverted, stated in the light most favorable to the party opposing
that particular summary judgment motion. Scott v. Harris, 550 U.S. 372, 378 (2007).
1.

Plaintiff’s Seizure Disorder and His Treatment

Plaintiff has a diagnosis of epilepsy because he had recurrent seizures that were
unprovoked.6 Epilepsy is characterized by individual episodes which come in the form of
seizures.7 Plaintiff has had a seizure disorder for at least 11 years. When he turned 16 years old,
plaintiff started seeing a physician regularly about his seizure disorder. Two of plaintiff’s
treating neurologists were Dr. Seeley and Dr. Kaplan.
Plaintiff considers his family medicine doctor, Dr. Ferguson, to be his primary care
physician. Dr. Ferguson is not a neurologist and fewer than 5% of his patients have a seizure
disorder. Dr. Ferguson did not take over plaintiff’s seizure care from plaintiff’s treating
neurologists. But from approximately October 2015 to April 2017, Dr. Ferguson was the only

5

In its Memorandum and Order dated April 13, 2017 (Doc. 112), the court noted that some of the
evidence plaintiff intended to rely on in his Response to AWG's Motion to Dismiss or, in the Alternative,
for Summary Judgment “was not yet admissible.” Doc. 112 at 17. The court explained that “[t]o make
this evidence admissible . . . plaintiff must depose AWG and/or [CMKA] employees.” Id.; see Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (“[Summary judgment facts must be identified
by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” (citing Thomas
v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992))). Plaintiff continues to rely on
inadmissible evidence at this stage, and AWG objects. Specifically, plaintiff relies on Documents 65-1 (a
December 15, 2014 email between an unknown sender and recipients), 65-10 (October 10, 2014 email
traffic between Cindy Davis and Jeff Harper), 65-14 (an untitled summary of various events in 2014), and
200-16 (CMKA Termination Report) for his additional statements of material fact in response to AWG’s
Motion for Summary Judgment. See Doc. 199 at 52–53. But, plaintiff fails to cite to any deposition
transcript or affidavit purporting to make these documents admissible as evidence. In brief, plaintiff fails
to authenticate these documents in any way. They also present hearsay problems. The court thus
excludes them when ruling the summary judgment motions.

6

Epilepsy is a physiological condition or disorder that affects plaintiff’s neurological system.

7

Seizures occur in an episodic fashion and is an episodic condition.

18

doctor managing plaintiff’s seizure disorder. Throughout his treatment of plaintiff—including
the period at issue here, 2014—Dr. Ferguson always told plaintiff that he needed to seek
treatment from a neurologist. Dr. Ferguson doesn’t think plaintiff sought or received consistent
treatment by a neurologist during 2014. But Dr. Ferguson believed plaintiff was receiving some
seizure care from Dr. Kaplan during that period.
a.

Seizures

Plaintiff’s seizure disorder causes him to experience both grand mal (or tonic-clonic)
seizures and complex partial seizures. Grand mal seizures cause plaintiff to lose consciousness.
During a complex partial seizure, plaintiff has “difficulty doing anything purposefully.” Doc.
176-1 at 10 (Seeley Dep. 135:1–4).
Epilepsy—through seizures—affects activities of daily living. Dr. Seeley and Dr. Kaplan
opine that when plaintiff is having a seizure, he is unable to perform manual tasks, his ability to
concentrate is limited, and he is substantially limited in his ability to communicate.
Generally, plaintiff’s seizures are between three and six months apart. Since 2008,
plaintiff has never gone more than six months between seizures. But he never has had seizures
on back-to-back days. As he explained to his doctors, plaintiff sometimes experiences an aura—
a warning that a seizure is coming on; but sometimes he does not.
During past seizures, plaintiff has been unconscious for as long as 45 seconds. He
characterizes the period after unconsciousness as “coming to,” and he explained that it can take
up to five minutes for him to “come around.” Doc. 183-2 at 4 (Crumpley Dep. 10:1–6). In 2013
and 2014, plaintiff’s seizures lasted between 60 and 90 seconds.
After a normal seizure, plaintiff is in a postictal state for as long as an hour and he also
has a headache. Dr. Ferguson witnessed one of plaintiff’s seizures and noted that plaintiff had

19

very “little postictal,” meaning “within a very, very short period of time he was back to exactly
where he was before he came in.” Doc. 200-7 at 3 (Ferguson Dep. 93:4–10).
Plaintiff has a history of breakthrough seizures. This means that plaintiff continued to
have seizures even though he was on medication. For patients who have generalized tonic-clonic
seizures, like plaintiff, taking medication consistently and in the right amount is crucial for
controlling a seizure disorder. In plaintiff’s case, his medications did not always control his
seizures.
Although there is no cure for seizure disorder, seizure surgery eliminates a patient’s
seizures 20 to 25 percent of the time. A Vagal Nerve Stimulator is another medical option for
patients with seizure disorder. In Dr. Kaplan’s experience, this treatment can result in
significantly improved seizure control in about 75 percent of patients. Dr. Seeley repeatedly
recommended a Vagal Nerve Stimulator to plaintiff to help him control the number of seizures
he experiences. Dr. Kaplan also believes plaintiff was a good candidate for this procedure. But
plaintiff did not undergo the procedure because, based on his own personal experience, he did
not feel he needed it. Plaintiff believes that he didn’t need the procedure because his seizures
occurred so far apart and milder than seizures he has witnessed others experience.
Plaintiff failed to follow the directives from Dr. Seeley, his treating neurologist, to seek
regular follow up care. Between January 2010 and February 2013, plaintiff followed up with Dr.
Seeley two times. Plaintiff went 11 months from January to December 2010 without following
up with Dr. Seeley. He then went another eight months—until August 2011—without follow up
care. Finally, he went until February 2013—18 months—without following up with Dr. Seeley.

20

b.

Seizure Precautions

Plaintiff’s treating neurologists warned plaintiff about standard seizure precautions
during his treatment for his seizure condition. These precautions included refraining from:
driving a vehicle; working at certain heights; and working alone or being alone for extended
periods of time for six months after a seizure. The neurologists recommended these precautions
to decrease plaintiff’s risk of serious, adverse events while experiencing a seizure, which are
more common within the six months after a seizure. Because of the seriousness of the risk,
driving within six months after a seizure is one of the most important precautions. The seizure
precaution against working alone or being alone for extended periods of time is also important
because an individual with a seizure disorder risks complications such as choking, aspiration
pneumonia, or Sudden Death of Epilepsy (“SUDEP”).
Plaintiff’s doctors informed him that it is illegal for him to drive in Kansas and Missouri8
within six months after he experiences a seizure. But plaintiff cannot recall definitively whether

8

Kansas drivers’ licensing law provides:
Seizure disorders which are controlled shall not be considered a disability. In cases where such
seizure disorders are not controlled, the director or the medical advisory board may recommend
that such person be issued a driver’s license to drive class C or M vehicles and restricted to
operating such vehicles as the division determines to be appropriate to assure the safe operation
of a motor vehicle by the licensee. Restricted licenses issued pursuant to this paragraph shall
be subject to suspension or revocation. For the purpose of this paragraph, seizure disorders
which are controlled means that the licensee has not sustained a seizure involving a loss
of consciousness in the waking state within six months preceding the application or
renewal of a driver’s license and whenever a person licensed to practice medicine and
surgery makes a written report to the division stating that the licensee’s seizures are
controlled. The report shall be based on an examination of the applicant’s medical
condition not more than three months prior to the date the report is submitted. Such
report shall be made on a form furnished to the applicant by the division. Any physician who
makes such report shall not be liable for any damages which may be attributable to the issuance
or renewal of a driver’s license and subsequent operation of a motor vehicle by the licensee.

Kan. Stat. Ann. § 8-247(e)(6).

21

he investigated the legality of driving in those circumstances. His understanding was that, as a
Missouri resident, he could not drive for three months after a seizure.
Dr. Seeley told plaintiff about the seizure precautions, including the one against driving
within six months after a seizure. Dr. Seeley also displays posters in his office that advise it is
illegal in both Kansas and Missouri to drive within six months of a seizure. And Dr. Kaplan
strictly cautioned plaintiff that it was illegal to drive in the six months after a seizure, and that he
could “seriously hurt or even kill someone if he were to have an episode or seizure while
driving.” Doc. 180-3 at 9 (Kaplan Dep. 51:23–52:5). Despite the standard six-month seizure
precaution, Dr. Kaplan opined that plaintiff should not drive at all unless he has seizure surgery
and is seizure free for two years. Even small seizures can pose a danger to someone who is
driving a motor vehicle.9

Missouri drivers’ licensing law provides:
The director, having good cause to believe that an operator is incompetent or unqualified to
retain his or her license, . . . may require the person to submit to an examination as prescribed
by the director. Upon conclusion of the examination, the director may allow the person to
retain his or her license, may suspend, deny or revoke the person’s license, or may issue the
person a license subject to restrictions as provided in section 302.301. If an examination
indicates a condition that potentially impairs safe driving, the director, in addition to action
with respect to the license, may require the person to submit to further periodic examinations.
Mo. Rev. Stat. § 302.291. A person is incompetent to drive a motor vehicle when he “has become
physically incapable of meeting the prescribed requirements of an examination for an operator’s license
. . .” Id. § 302.010(8).
The court may judicially notice state statutes. Clemmons v. Bohannon, 918 F.2d 858, 865 n.5 (10th
Cir. 1990), vacated on other grounds on rehearing, 956 F.2d 1523 (10th Cir. 1992). This includes notice
taken at summary judgment. St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir.
1979), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946 (10th Cir. 2001).
9

Dr. Ferguson opined that a neurologist should provide seizure precautions to their patients, including,
specifically the precaution against driving a motor vehicle. He was not aware of the laws in Kansas or
Missouri about driving a motor vehicle after experiencing a seizure.

22

Plaintiff never disclosed his seizure disorder to either the State of Kansas or the State of
Missouri. Specifically, when acquiring or renewing his driver’s license, plaintiff never has
disclosed that he has a seizure disorder. Plaintiff did not recall whether the Missouri driver’s
licensing agency asked him about a seizure disorder when he submitted his driver’s license
application.
Plaintiff agrees that the reason for seizure precautions—including the ones against
driving, working at certain heights, and working alone or being alone for extended periods of
time—is for the safety of himself and others. Specifically, plaintiff knows and agrees that it is
dangerous for him (and others) to drive a car during the six months after he has experienced a
seizure because of the potential for another seizure, and possibly causing him to crash and hurt
himself or others. But, plaintiff did not comply with the directives from his physicians against
driving a vehicle for six months after experiencing a seizure because he needed to work and had
needed a way to get to work. Plaintiff has driven and continues to drive within six months after
seizures.10
Plaintiff has had two motor vehicle accidents that occurred because he had a seizure
while he was driving—one on March 16, 2008, and another on May 4, 2015. Both accidents
injured plaintiff. During the 2008 accident, plaintiff’s younger brother was in the car with him.
Plaintiff remembers waking up in the back of an ambulance after the 2015 accident. After the
2008 motor vehicle accident, plaintiff only took a week off from driving. And after the 2015
motor vehicle accident, he took three to four days off before driving again.
Regardless of any safety concerns, plaintiff has chosen not to abide by driving laws and
his doctors’ seizure precautions when he does not agree with them. He does not believe he

10

Plaintiff’s mother also has expressed concerns about him working alone and driving within six
months of a seizure.

23

should be treated differently than a diabetic whose blood sugar may plummet and cause him to
pass out while driving.
The seizure precautions, notwithstanding, plaintiff contends his doctors never have
restricted him from performing any activity.
2.

Agreement between AWG and CMKA

CMKA provides security and investigative services to its clients. Those services include
armed and unarmed security guarding, armed executive protection, security consulting, and
investigative services. In August 2013, AWG and CMKA entered into an Unarmed Premium
Asset Protection Service Agreement (“Agreement”). This agreement provided that CMKA
would supply Asset Protection Agents (i.e., security guards) to provide security and related
services for AWG’s location in Kansas City, Kansas. The Agreement provided, in relevant part:
II. PERSONNEL
a. All Asset Protection Agents furnished by CMKA shall be employees, agents or
subcontractors of CMKA, which is acting as an independent contractor for [AWG].
CMKA will pay all wages and appropriate expenses, and, for its employees, all
Employers’ Federal, State, and Social Security taxes, Federal and State
Employment taxes, and any other required personnel taxes. [AWG] shall not direct
or supervise any of CMKA’s Asset Protection Agents.
b. CMKA will provide its Asset Protection Agents with uniforms, and all necessary
equipment, as mutually agreed upon between [AWG] and CMKA. [AWG] shall
have the right to reject for any reason any Asset Protection Agent assigned by
CMKA to [AWG] facility, and CMKA shall provide a satisfactory replacement as
soon thereafter as possible.
c. [AWG] agrees that it will not employ, as an Asset Protection Agent or in any
related capacity, directly or indirectly, any person who has been employed by
CMKA and assigned to the [AWG] facility, for a period of one hundred eighty
(180) days following the last date on which CMKA employed that person.
...

24

III. SCOPE OF WORK
...
b. The conduct and scope of responsibility of all Asset Protection Agents assigned
to [AWG]’s facility shall be governed by policy, rules and Post Orders mutually
agreed to by both parties and made a part of this Agreement. This data may be
revised and supplemented at any time in writing upon mutual agreement of both
parties. No alteration of Post Orders can be given by [AWG] unless in writing and
signed by both parties.
c. It is understood that CMKA will be responsible for the hiring, uniforming,
training, and supervision of all Asset Protection Agents provided for [AWG] unless
otherwise agreed to by [AWG] . . . .
IV. BILLING, TERMS AND RATE GUARANTEES
a. CMKA will deliver weekly invoices containing a complete detail of the hours
worked by CMKA’s employees on-site as Asset Protection Agents to [AWG] at the
address specified. A detailed statement of the number of hours worked by each
Asset Protection Agent will also be supplied or made available at [AWG]’s request.
Invoices shall be due and payable upon receipt without offset of any kind or nature
whatsoever . . . .
Doc. 180-10 at 1–2. Also the Agreement required CMKA to maintain “statutory worker’s
compensation insurance . . . [and] employer’s liability insurance.” Doc. 180-10 at 4. The
Agreement required AWG to pay CMKA $16.00 for each service hour worked by CMKA
employees at AWG’s facility. CMKA managed overtime, and AWG only paid CMKA the
overtime rate—time and a half—when AWG requested a specific agent to work beyond the
schedule or when the agent worked on a nationally-recognized holiday.
AWG originally entered the Agreement with CMKA so that CMKA could provide
security officers to staff the AWG Guard Shack. Five months later, AWG decided to outsource
this position. In March 2014, CMKA began providing personnel to cover some of the desk
security officer (“Desk Officer”) shifts and limited patrol/EMT (“EMT/Patrol Officer”) shifts at
AWG’s location in Kansas City, Kansas. Initially, CMKA provided Asset Protection Agents to

25

cover the Desk Officer position for 88 hours per week and the EMT/Patrol Officer for 56 hours
per week. Beginning about June 2014, AWG reduced the number of hours it needed from the
CMKA Asset Protection Agents for the EMT/Patrol Officer position from 56 hours per week to
16 hours per week.
3.

Plaintiff’s Application to CMKA

Plaintiff responded to a CMKA posting on Craigslist seeking “EMT/Security Guards
(unarmed) to work at a Kansas City, KS business.” See Doc. 183-4 at 1. He submitted a cover
letter and his résumé to CMKA. The Craigslist job posting was the only job description plaintiff
saw for this position. It listed the experience and the skills required. The advertised position
required a certified and licensed EMT who was reliable, punctual, trustworthy, and customerservice oriented. Also, the position required good oral and written communication skills, basic
computer operation skills, professional representation of the company, good physical condition,
and a neat and clean appearance.
In early March 2014, plaintiff interviewed for the job. Two CMKA supervisory
employees—Terry Threadgill and Jeff Harper—interviewed plaintiff. During the interview, they
did not ask plaintiff whether he suffered from any medical conditions. They also did not ask this
question after he was hired. And although plaintiff knew during the application and interview
process that the position might include driving and working alone, he did not inform anyone at
CMKA about his seizure disorder or the seizure precaution directives (i.e., no driving or working
alone). Because he had suffered a seizure in January 2014, the seizure precautions warned
plaintiff against driving or working alone until July 2014. But plaintiff told Mr. Harper during
the CMKA interview in March 2014 that he was physically able to perform the job duties,
including driving and working alone, even though that contradicted the directives he had

26

received from his doctors. Plaintiff agrees he hid his seizure disorder and related restrictions
from CMKA so he could get the job there.
Not long after the interview, CMKA hired plaintiff as an Asset Protection Agent and he
held that position throughout the time he worked for CMKA. He was an on-call employee,
which meant that CMKA called him to work when hours were available. The job duties of an
Asset Protection Agent differed depending on the needs of the customer and the job site. An
Asset Protection Agent assigned to AWG worked in the guard shack, worked at the front desk,
performed EMT duties, and performed patrol duties. Scheduling for the Asset Protection Agents
varied based on the clients’ needs. But from March through May 2014, AWG only needed Desk
Officers—not EMT/Patrol Officers.
AWG was not involved in plaintiff’s application or interview process. Nor was AWG
involved in the decision to hire plaintiff. Generally, AWG was not involved in CMKA’s Asset
Protection Agent hiring process. But on May 23, 2014, Rod Smith, CMKA’s Chief Operations
Officer, sent Jerry Burke, AWG’s Senior Manager for Corporate Security, an email with
candidates’ resumes attached. Mr. Smith told Mr. Burke that he was attending the interviews “to
get a better sense of who to select . . . or at least [who] to offer to you as a candidate.” Doc. 18027 at 2. After one of the candidates completed his background check and initial drug screening,
Mr. Smith planned to send the candidate over “for a look by” Mr. Burke and AWG’s Security
Supervisor in Kansas City, Kansas. Id.11

11

Since March 2014, CMKA has not had any clients—other than AWG—who required EMTs.
CMKA never had tried to recruit EMTs for any work assignments before its relationship with AWG
began. CMKA experienced difficulty finding qualified people to fill these positions.

27

4.

Plaintiff’s Employment Paperwork, Pay, and Benefits

CMKA conducts a new hire orientation program. It includes reviewing the CMKA
Employee Handbook and completing necessary paperwork. Plaintiff has no independent
recollection of this orientation. But he did receive the CMKA Employee Handbook, the Asset
Protection Agent Employee Handbook Supplement, and Safety Program Handbook. Plaintiff
reviewed the CMKA Handbook and signed an acknowledgement form confirming that he had
received, read, and understood the policies included in CMKA’s Employee Handbook.12
The CMKA Employee Handbook contains a Progressive Discipline Policy with six levels
of discipline, culminating with dismissal. The dismissal subsection included the following
provisions: “Actions taken may deviate from recommendations listed due to extenuating
circumstances,” and “Project Managers have the authority to execute immediate suspensions
from the site based on their judgment.” Doc. 209-15 at 49–50.
The Handbook also listed ten offenses that could result in immediate dismissal:
1. Possession of unauthorized weapons at work.
2. Abandoning post without proper relief.
3. Using or being under the influence of alcohol, intoxicants, illegal drugs,
controlled substances (to include certain prescription drugs) while on the job.
4. Falsifying any CMKE or client record, including application, timesheets, logs,
tour reports, and requests for reimbursements.
5. Theft of or deliberate damage to CMKE or client property.
6. Violation of CMKE's use of force/escalation of force policy.
7. Conviction for or pleading guilty to violation of any felony criminal statute or
code.
8. Repeated violation of safety rules.
9. Sexual or other harassment of client, other contractor or [CMKA] employees.
10. Sleeping on the job.
Id. at 48–49.

12

Plaintiff does not recall ever seeing or receiving any AWG employee handbook.

28

Plaintiff also read the CMKA policies about Equal Opportunity and the Americans with
Disabilities Act that are contained in the CMKA Handbook. Plaintiff knew he could ask
questions if he did not understand any of the policies, but he did not need to ask any questions.
Plaintiff understood the policies. And he knew at the outset of his employment with CMKA that
if he had any concerns or complaints about discrimination or retaliation, he had an obligation to
report them to CMKA.
During the time he worked for CMKA, plaintiff signed off on various other paperwork.
It indicated that he received, read, and understood CMKA’s programs and policies. These
programs and policies included a non-discrimination and anti-harassment policy, a time sheet
submission policy, and a scheduling guidance policy. Plaintiff also signed CMKA’s Conflict of
Interest and Outside Employment Statement. It acknowledged that CMKA was his sole
employer. Finally, plaintiff signed a business protection agreement with CMKA. In it, plaintiff
indicated that he was an at-will employee of CMKA. Plaintiff does not recall ever signing any
similar pre-hire paperwork with AWG.
On March 5, 2014, plaintiff acknowledged that he would be required by CMKA (not
AWG) to obtain “investigator/asset protection licenses for [his] respective areas of responsibility
upon hire,” and he did, in fact, obtain those licenses. Doc. 60-7 at 2.
On April 8, 2014, Ms. Threadgill confirmed CMKA’s offer of employment to plaintiff by
letter. This letter confirmed plaintiff’s rate of pay, provided him with information about the
license that CMKA required plaintiff to secure (including a statement that CMKA would
reimburse licensing fees after he completed six months of employment), and noted that CMKA
would issue plaintiff its standard uniform. Ms. Threadgill also confirmed to plaintiff that his
employment with CMKA was at-will, and the letter did not create a contract for employment

29

with CMKA of a definite duration. Plaintiff also received a second letter from CMKA
explaining that he would be eligible for CMKA’s employee stock ownership plan.
During his employment with CMKA, CMKA paid plaintiff at the rate of $10.00 per hour.
He never received any pay or salary from AWG. AWG did not set plaintiff’s pay rate, issue
plaintiff paychecks, or pay his employment taxes. Plaintiff signed paperwork authorizing
CMKA to pay him through direct deposit; he did not sign any such paperwork for AWG. And
CMKA provided his tax forms. Finally, plaintiff submitted federal I-9 paperwork to CMKA, not
to AWG. AWG provided plaintiff no benefits. He did not receive stock ownership or insurance
from AWG, and, if he took vacation days, CMKA—not AWG—paid him for those days.
CMKA maintained a personnel file on plaintiff. CMKA required plaintiff to fill out
timesheets for CMKA; he did not submit time records to AWG. AWG required plaintiff to
create daily activity reports and daily shift summaries which detailed activities that occurred
while plaintiff provided services on site at AWG. AWG maintained these reports and summaries
in its records.
5.

Plaintiff’s Assignment at AWG

From March 2014 through August 21, 2014, plaintiff was employed by CMKA and
assigned to AWG’s Kansas City, Kansas facility. During that entire time, his CMKA job title
was Asset Protection Agent and his AWG job title never changed from Desk Officer/EMT.
While plaintiff received one day of training for the EMT/Patrol Officer position, he never
worked in that position during his time at the AWG facility. He worked only as a Desk Officer.
While plaintiff worked at CMKA, most CMKA on-call employees were assigned a
specific post at a specific location. But the assignment could change. A majority of CMKA’s
on-call employees working in a security guard role had a designated place to go for their weekly
work. They usually reported to the same location, but that location changed at times. CMKA
30

provided unarmed security officers to four or five businesses other than AWG. They included
Aberdeen Village, Notre Dame de Sion, and St. Paul School. Aberdeen Village was a retirement
community located in Olathe, Kansas, that provided retirement and hospital-type services,
including three different levels of progressive care. Two CMKA on-call employees staffed the
Aberdeen Village assignment, though they worked different shifts. Only one CMKA employee
at a time would actually work at the location. In 2014, CMKA believed one of the on-call
employees assigned to Aberdeen Village would be leaving and thus create an open position
there. So when plaintiff became unhappy with his duties at AWG and AWG was unhappy with
his performance, CMKA considered moving plaintiff to that potential opening. But ultimately,
the position never opened.
In 2014, Mr. Smith was CMKA’s Chief Operating Officer (“COO”) and Vice President
of Operations. Mr. Harper served as its Operations Manager, and he was plaintiff’s direct
supervisor. Ms. Threadgill worked as a Case Manager in the Protective Services department and
she was another of plaintiff’s supervisors.
a.

Duties

Asset Protection Agents worked three different shifts at AWG: midnight to 8:00 a.m.;
8:00 a.m. to 4:00 p.m.; and 4:00 p.m. to midnight. AWG employee shifts were slightly different;
their shifts started 30 minutes earlier because they were scheduled for a 30-minute lunch.
Plaintiff generally worked an overnight shift (midnight to 8:00 a.m.). Normally, there only were
two IT employees in the building during this shift. Plaintiff explained that if he had a seizure
they would not be able to help until after the seizure had subsided and he called them.
The essential functions of AWG positions—for both AWG employees and CMKA Asset
Protection Agents assigned to AWG—were identified by the individual departments and their

31

hiring managers. AWG did not require each department to list out the essential functions of each
job.
i.

EMT/Patrol

Mr. Burke—AWG’s Senior Manager for Corporate Security—listed the essential
functions of the AWG EMT/Patrol Officer position in 2014 as: conducting patrols by vehicle
and on foot of the entire AWG facility (including another building down the street); and handling
medical calls at any of those facilities.13 The patrol duties included checking parking lots, and
foot patrols of the corporate office, another building, and the warehouse. Mr. Burke identified
other essential functions of the EMT/Patrol Officer position as: performing drug screens;
handling post-accident drug and alcohol screens; assisting the Desk Officers (giving them breaks
and thus requiring cross-training on Desk Officer duties); checking fire extinguishers in the
corporate building; assisting with conducting preemployment background checks; monitoring
cameras; accessing control; checking emergency lights and doors; responding to alarms; and
performing floor and door checks.
Mr. Burke explained that AWG required its EMT/Patrol Officers to drive motor vehicles
because the AWG warehouse facility is a million square feet that occupies more than 40 acres of
land. And AWG required EMT/Patrol Officers to patrol that entire facility. Also, EMT/Patrol
Officers could access another facility that they had to patrol only by driving on public roads.
Finally, EMT/Patrol Officers may have to take someone to a medical clinic. This function
required an ability to drive on public roads. Conversely, Mr. Harper—CMKA’s Operations

13

The AWG campus has traffic from common carriers, contractors, and vendors. This traffic includes
tractor-trailers carrying 80,000-pound rigs. AWG bans bicycles for safety reasons, except in employee
parking lots. The AWG warehouse is a 24/7 operation, with trucks coming and going at all hours.
Plaintiff estimates that the entire facility covers 10–12 city blocks.

32

Manager—believed that the only purpose for the EMT driving a motor vehicle was to respond to
a medical call as quickly as possible.
While the number of medical calls in a typical week requiring the EMT/Patrol Officer to
respond varied from week-to-week, the number of calls had reached as many as 10 in one week.
The only means of transportation to respond to medical calls that were far away on AWG’s
campus was by using an AWG patrol vehicle.
Plaintiff agreed that the primary duties of the EMT/Patrol Officer required him to provide
EMT assistance as needed while working at the front desk, alone during the night shift, or when
patrolling the area in a client vehicle. Plaintiff also agreed that driving was an essential function
of the EMT position.
From March 2014 through at least August 2014, AWG did not have 24/7 EMT coverage
at its Kansas City, Kansas location.
Before plaintiff began his assignment at AWG, he was certified as a medical first
responder and had learned skills like taking blood pressure, monitoring heart rates, setting
splints, and performing other general emergency medical skills. The only training he needed to
receive at AWG about EMT services were AWG’s specific protocols, where AWG kept
equipment, and related knowledge.
ii.

Desk Officer

The essential functions of the Desk Officer position included sitting at the front desk of
AWG’s corporate office, answering phones, transferring calls to the proper divisions after hours,
monitoring cameras, accessing control, conducting preemployment background screens, and
conducting floor and door checks. The Desk Officer also was responsible for tracking who was
in the building in case of emergency.

33

The floor check and door check job duties included checking certain offices on each floor
to ensure they were locked. During the floor and door checks, Desk Officers were supposed to
check offices for lights that were left on, leaking water pipes, and to ensure generally that
“everything was in order.” Doc. 180-12 at 9 (Burke Dep. 54:17–19). During these checks, Desk
Officers also ensured that all individuals in the building were logged into the computer system.
AWG required every Desk Officer to perform floor and door checks at least once per shift—even
when the outgoing officer had performed a floor and door check right before leaving. The only
Desk Officers exempt from performing these checks were the ones assigned to the day shift
during the work week. Unlike EMT/Patrol Officers, Desk Officers were not required to drive
cars.
AWG provided plaintiff with just two types of training about the front desk duties. They
were: which websites to use to conduct background checks on individuals applying for work at
one of AWG’s member’s facilities; and what areas of the building to monitor using the video
monitors located at the front desk. Amber Morlan—an AWG employee—showed plaintiff how
to perform the background check portion of his duties. Plaintiff already knew how to use the
computer, view a computer monitor, and fill out a report.
The security officer position at the Guard Shack was a different position than either the
Desk Officer or EMT/Patrol Officer role. Plaintiff never worked in the Guard Shack and was not
interested in working in that position.
iii.

Daily Activity Reports and Post Orders

Asset Protection Agents were required to fill out Daily Activity Reports for each shift
they worked. They were required to complete this report fully. The Daily Activity Report
included a section at the bottom entitled Chronological Patrol Log. If something unusual

34

occurred, or there was suspicious activity (i.e., they deactivated a badge or the police or an
ambulance was called) the Desk Officer was required to note that event in this portion of the
report. And before plaintiff was removed from AWG, Mr. Burke had instructed the Asset
Protection Agents to note on their Patrol Log when they had conducted their floor rounds.
Desk Officers were not required to list each office that they checked during their floor
checks on the Daily Activity Report. But if an office that was supposed to be locked was found
unlocked, the Desk Officer needed to note that on his Daily Activity Report. Desk Officers were
also required to notify Mr. Burke and Mark Hulett—AWG’s Kansas City Security Supervisor—
if they found any office unlocked.
Besides orientation that trained Asset Protection Agents on how to perform the job duties,
there were also “post orders” and emails that provided the agents with guidance. Post orders
outlined specific duties, policies, or procedures for a particular department or job description.
They constituted the reference manual, which Desk Officers used to learn and understand what
they were supposed to do. The post orders also explained how individuals were to perform their
job functions. In 2014, the Security Department post orders were kept at the front desk (for the
Desk Officers) and in the Security office (for the EMT/Patrol Officers).
While CMKA had a right under the Agreement to be consulted about the post orders, in
practice, AWG created them. CMKA could review the post orders and notify AWG of any
concerns. But, Mr. Harper didn’t remember CMKA asking to make any changes to post orders
so he could not answer definitely whether AWG would have made those changes. Mr. Harper
believed that AWG had the final approval authority on post orders.

35

b.

Schedule, Job Duties, and Discipline

On occasion, AWG requested plaintiff to work certain hours. But generally, CMKA
assigned plaintiff his work hours. Mr. Harper explained that he was involved in some of the
scheduling of CMKA personnel assigned to AWG.
On March 31, 2014, plaintiff emailed Mr. Harper about a 16-hour shift he was scheduled
to work. Mr. Harper responded, “Jerry [Burke] brought that to my attention. I will adjust.”
Doc. 60-10 at 7. Mr. Burke explained:
Jeff Harper created the schedules for assigned Asset Protection Agents.
Occasionally, when AWG Security Supervisor Mark Hulett (“Hulett”) or I would
notice mistakes in the schedules for services to be provided (for example, if a single
[CMKA] employee was assigned to work sixteen hours consecutively), one of us
would tell Harper so he could make necessary adjustments to provide appropriate
coverage as he would determine. If it was more efficient, Hulett or I might adjust
the scheduled coverage ourselves and then inform Harper who would make the
determination about the assignment.
Doc. 67-1 at 3.
Generally, when plaintiff had questions about his hours, his schedule, or his job duties, he
communicated with CMKA employees. AWG employees might mention information about how
to dress, meetings, or similar topics but, generally, plaintiff expected to receive this kind of
information from CMKA.
Generally, CMKA disciplined plaintiff; AWG had no power to discipline or evaluate the
performance of Asset Protection Agents. When AWG had concerns about plaintiff’s appearance
or performance, they communicated those concerns to CMKA, who corrected plaintiff. For
example, plaintiff wore his CMKA uniform, bearing a CMKA logo, while on AWG’s premises.
But when plaintiff failed to wear a belt, Mr. Burke informed Mr. Harper, who then told plaintiff
to wear a belt so he could present a professional image. But occasionally, AWG sent reminders

36

directly to plaintiff and other CMKA employees. Specifically, Mr. Burke once reminded the
front desk officers to conduct door checks and turn off lights.
6.

Dress Code and Performance Issues

Within a week of beginning his employment with CMKA and assignment at AWG,
plaintiff had dress code issues. On March 10, 2014, Mr. Harper emailed plaintiff reminding him
to dress appropriately, i.e., that he was expected to “[d]ress kind of business casual type.” Doc.
180-18. On March 18, 2014, Mr. Harper again emailed plaintiff about his appearance—he
should wear a belt—and directing him to “sit up” at the AWG front desk. Doc. 180-19. Two
days later, Mr. Harper again sent plaintiff an email about the dress code. He also addressed front
desk performance issues. Specifically, he asked plaintiff to run as many background checks as
possible while stationed at the front desk. He also reminded him to promptly answer the phone.
The phone rang—unanswered—for 2–3 minutes during one of plaintiff’s shifts.
Around this same time in March 2014, plaintiff became frustrated with the computer at
the front desk and he banged the keyboard on the desk. Mr. Burke was located nearby and he
helped plaintiff resolve the computer issue. Mr. Burke also spoke to plaintiff about banging the
keyboard on the AWG front desk, explaining that it was unacceptable behavior.
At the end of March and through April 2014, Mr. Burke sent plaintiff several emails. On
March 31, 2014, he sent one advising plaintiff that he was coding store entries incorrectly. This
message also provided plaintiff some tips for handling individual background checks. On April
16, 2014, Mr. Burke sent plaintiff a message advising him that he needed to remember to check
women’s maiden names when performing the background checks to ensure accurate results. On
April 24, 2014, Mr. Burke sent plaintiff and another CMKA employee, Esther Zimmerman, a
message asking them to use the attachment to the email as a model when entering store numbers.
And on April 27, 2014, Mr. Burke sent a message to plaintiff advising that he needed to record in
37

PassagePoint (AWG’s software system) everyone who entered the AWG building after normal
hours. Plaintiff acknowledged that he had not done so and explained that it was hard for him to
keep up because he did not know all the faces of the people who come into the building.
7.

April/May 2014 Seizure

In late April or early May 2014, plaintiff experienced another seizure at home. Plaintiff
did not disclose this seizure to anyone at CMKA or AWG. Plaintiff explained that someone told
him that until an employer witnessed one of his seizures, it is none of their concern and so,
plaintiff believed he could disclose his seizure at his discretion. Plaintiff did not tell anyone at
AWG or CMKA that he was not supposed to be driving or working alone for six months
following the seizure. By this point in time, CMKA had not given plaintiff any reason to believe
it would have treated him differently had he disclosed his medical condition.
8.

Continued Performance Issues and Plaintiff’s Unhappiness

Throughout May and June 2014, plaintiff continued to experience performance issues.
On May 5, 2014, Mr. Burke sent plaintiff an email telling him that when performing background
checks, he needed to run a data facts report when the Missouri case.net website search did not
show any convictions.
Overall, AWG was unhappy with plaintiff’s appearance and performance, and CMKA
began looking for a new job location for plaintiff. CMKA told AWG about its intention to seek
a new location for plaintiff. Specifically, on May 23, 2014, Mr. Smith informed Mr. Burke by
email that CMKA was “taking a hard look at [plaintiff] and thinking proactively about a possible
move there.” Doc. 209-13 at 2. He promised to “get back to [Mr. Burke] shortly on that.” Id.
CMKA wanted to “study the options first.” Id.
Around this same time, plaintiff was upset and frustrated that he had not been able to
perform the EMT functions of the work assignment at AWG. When plaintiff began his
38

assignment at AWG, he was anxious to begin working in the EMT/Patrol Officer position, rather
than the front desk position. But CMKA informed him that it was more important to cover the
front desk position. Plaintiff made it clear to CMKA that he wanted to perform the EMT
functions of the position at AWG and wanted an EMT position, if possible. The reason he
applied for the CMKA/AWG position was because of the EMT work and he would not be happy
in his CMKA role if he worked in the security guard position only. Plaintiff was disappointed
that his placement in the EMT position was delayed repeatedly.
On May 29, 2014, plaintiff sent an email to Mr. Harper expressing frustration that he had
not been trained on the EMT/Patrol Officer position yet. Plaintiff also asked whether there were
any other EMT positions available at other CMKA clients. Mr. Harper explained to him that
AWG was the only CMKA client that had EMT positions and that AWG was responsible for the
delay in his training. After several messages back and forth, Mr. Harper responded that “the
bottom line is that this is what the client wanted to do and they pay us so we as a company have
to do that.” Doc. 180-28 at 1. Mr. Harper believed plaintiff was not happy with the front desk
position and he wanted to move to a different one, if possible.14
Around the beginning of June 2014, AWG decided to reduce the number of weekly hours
CMKA need to staff the EMT/Patrol Officer position; the weekly hours were reduced from 56
hours per week to 16 hours per week and as needed to cover any vacation taken by Mr. Hulett.
AWG had designated Ms. Morlan from AWG to cover the 40 hours that resulted in the
reduction. And then AWG needed someone to backfill her desk job.

14

While employed by CMKA, plaintiff continued to apply for positions where he could use his EMT
skills.

39

Plaintiff continued to have performance issues. On June 12, 2014, Mr. Burke sent
plaintiff a second email with the store number reference sheet because he continued to enter the
store numbers into the background database improperly. That same day, Mr. Burke sent plaintiff
another email instructing him how to run background checks properly to avoid charging a store
twice for the same background check. Against procedure, plaintiff had run a second background
check on an applicant within 30 days of the first check of that applicant.
On June 16, 2014, Mr. Burke sent an email to plaintiff and other individuals working the
Desk Officer position. This message advised the recipients that they had to perform their floor
and door checks on every shift. Also, he reminded them:
[A]fter City Wide15 has left it is the responsibility of the incoming desk officer or
the desk officer leaving to make a round in the building and check that the doors
that need to be locked are locked, and the lights upstairs and in certain areas on the
first floor are turned off.
Doc. 180-31 (footnote added). At the time plaintiff received this email, he knew that he must
check—whether he was the incoming or outgoing security guard—the referenced doors.
Plaintiff also understood which doors he needed to checked, and he was not confused about
which offices he needed to check.
On June 17, 2014, Ms. Threadgill sent plaintiff an email asking him why he was
recording extra time on his shift. Plaintiff responded that he was taking extra time because it

15

City Wide was the cleaning company that AWG used in 2014. They provided services like cleaning,
vacuuming, dusting desks, emptying trash, and cleaning bathrooms. In 2014, City Wide typically
performed their cleaning services at AWG Monday through Friday and began arriving there about 4:00
p.m. Depending on how much work the City Wide employees had to do, they left between 9:00 p.m. and
midnight.

40

allowed CMKA employee Jamie Phiakeo to go and turn out lights and lock doors. He explained
that AWG had “kinda been getting on to [them] about” locking doors and turning off lights.
Doc. 180-32.
If Mr. Burke or the Desk Officer who relieved him asked plaintiff about doors being
unlocked, he told them, “[I]f the doors were left open someone else left them open or didn’t
check them.” Doc. 180-1 at 24 (Crumpley Dep. 113:13–23).
9.

June 25, 2014 seizure

On June 25, 2014, plaintiff began his orientation and training for the EMT/Patrol Officer
position. During the training, plaintiff experienced a seizure while he was located at AWG’s
facility in Kansas City, Kansas. AWG employees assisted plaintiff when he experienced this
seizure. Mr. Hulett filled out an incident report about it. He also signed as a witness on
plaintiff’s Release from Responsibility. The release certified that plaintiff had refused
transportation against the advice of the EMT and AWG. When Mr. Hulett signed this release, he
noted his relationship to plaintiff as “supervisor.” Doc. 65-2 at 2. Mr. Hulett’s title at AWG was
Security Supervisor.
Shortly after he experienced this seizure, plaintiff disclosed to Mr. Hulett and Mr. Burke
for the first time that he had a history of seizures. Then, Mr. Burke called Mr. Harper and told
him that plaintiff had experienced a seizure participating in training at AWG. AWG had called
for an ambulance, but plaintiff refused treatment. Mr. Burke told Mr. Harper that they were
going to take plaintiff to the front office and Mr. Harper could call plaintiff there. Mr. Harper
spoke with plaintiff to determine whether he was alright. Before June 25, 2014, CMKA and
AWG did not know about plaintiff’s medical condition.

41

After his seizure, plaintiff requested the rest of the day off to recover. CMKA granted his
request. Plaintiff did not request any other accommodations from CMKA. Plaintiff also does
not recall discussing accommodations with AWG.
After the June 25 seizure and plaintiff’s disclosure that he had a history of seizures, AWG
developed concerns about plaintiff’s health and wellbeing, and his ability to perform the Desk
Officer and EMT/Patrol Officer positions safely. Specifically, AWG had concerns about
plaintiff potentially having another seizure while he was driving an AWG vehicle or
administering medical attention on an EMT call. AWG was concerned that either situation could
pose safety issues for plaintiff and others. Also, AWG had concerns that if plaintiff had a seizure
during the evening or overnight shifts that he frequently worked as a Desk Officer, there were
not many people in the building with him, so if plaintiff could not get immediate medical
attention that, too, could present a safety risk.
AWG first raised these concerns on June 25, when Mr. Burke discussed them with Mr.
Hulett. AWG later expressed its concerns to Mr. Harper and Mr. Smith at CMKA. CMKA
shared AWG’s concerns about plaintiff’s ability to perform the job functions safely.
Within a few days of his June 25 seizure, plaintiff spoke with Mr. Harper. He asked,
“I’m not going to lose my job because of this?” and “I’m not going to be impacted by this in
anyway?” (plaintiff clarified that “this” meant his medical condition). Doc. 198-4 at 12
(Crumpley Dep. 74:10–17).
Plaintiff repeatedly asked Mr. Harper when he would resume his normal schedule of
patrols. Around the end of June or beginning of July 2014, plaintiff again began work at AWG
in the same Desk Officer position he occupied before his June 25 seizure. Plaintiff agrees that
there was no significant deviation in the number of hours he worked after the seizure compared

42

with his hours he worked before that seizure. His average hours per week dropped from 34 to
29. Plaintiff does not claim that he was treated differently in his work as the front desk officer
after his seizure. Plaintiff never had worked an EMT shift or any shift that required driving
before his June 25, 2014 seizure.
After plaintiff’s period of convalescence from his June 25 seizure, Mr. Harper asked him
to obtain a signed medical release from his doctor. Around July 1, 2014, CMKA received an
unsigned medical release from plaintiff’s family practice physician, Dr. Ferguson. Plaintiff
cannot recall whether he told Dr. Ferguson what his job duties were before Dr. Ferguson’s office
provided plaintiff an unsigned release. CMKA contacted plaintiff to explain that they needed a
signed medical release. Plaintiff said he understood and contacted his physician to secure the
signed release.
No decision about plaintiff’s status on the EMT/Patrol Officer position had been made
before July 1, 2014. But, Mr. Burke explained that CMKA later decided, and he agreed, that
plaintiff’s EMT/Patrol Officer orientation and training would end. When asked if plaintiff ever
completed his EMT training, Mr. Harper did not know, but he thought Mr. Burke or Mr. Hulett
would know. Mr. Harper explained that AWG sometimes updated him about the status of
plaintiff’s training.
Around July 1, 2014, Mr. Harper spoke with Mr. Burke and Mr. Hulett about the legal
requirements for driving after a seizure, i.e., no driving within six months of a seizure. As
former police officers, these three individuals knew about this requirement for persons who had
experienced a seizure. Mr. Burke raised this issue first. AWG Senior Insurance Manager Tom
Burchett believed plaintiff could not, or should not, drive an AWG motor vehicle based on
Kansas law. He told Mr. Burke about his concern.

43

On July 15, 2014, Mr. Burke requested and arranged a meeting with Mr. Hulett and Mr.
Harper. During this meeting, they discussed: concerns about plaintiff’s operation of an AWG
motor vehicle, and the safety of plaintiff and others; the status of plaintiff’s unsigned medical
release; other potential positions for plaintiff based on Mr. Smith’s May 23, 2014 email and
other statements that CMKA was looking to move plaintiff to another position; status on the
possible Aberdeen opening in Olathe; the agreed decision that plaintiff would remain in the Desk
Officer position until the medical release issues were resolved; AWG’s thoughts about a possible
panic button at the front desk; and AWG’s intention to have some of the IT employees check on
plaintiff during his Desk Officer shifts to ensure he was alright. On July 18, 2014, Mr. Hulett
sent Mr. Burke an email memorializing their meeting with Mr. Harper. In this email, Mr. Hulett
wrote, “Mr. Burke was very clear in each of these discussions that he did not want [plaintiff] to
lose his job based on his medical condition because as previously stated it was not an issue for
AWG.” Doc. 180-41.
After the July 15, 2014 meeting, plaintiff’s hours, shifts, and his work environment
remained the same. And he performed the same duties he had performed before his June 25
seizure. But, for plaintiff’s safety, AWG had IT employees check on plaintiff periodically
throughout his Desk Officer shifts.
On July 29, 2014, plaintiff had an appointment with Dr. Ferguson. They discussed his
June 25 seizure. Plaintiff cannot recall if he told Dr. Ferguson that day or any time before what
his job duties were. He also cannot recall whether he told Dr. Ferguson that he would need to
drive a vehicle around the AWG facility, how often he would drive, or at what speeds he would
drive. But Dr. Ferguson understood, from information plaintiff had provided him, that plaintiff
might drive a small amount on AWG’s private property. Dr. Ferguson believed that plaintiff

44

spent a majority of his time at work walking. So, Dr. Ferguson believed it was safe for plaintiff
to drive because no one else was around that he could injure. In short, he told plaintiff he was
okay with plaintiff driving at speeds of 30 mph around the AWG facility perimeter if his
employer allowed it. But he did not want plaintiff driving on any regular highway or anyplace
else.16
That same day, plaintiff informed Mr. Harper that he had a signed medical release and
would fax it to Mr. Harper. Both AWG and CMKA had concerns about the medical release
because it merely permitted plaintiff to drive around the perimeter of the property. The
EMT/Patrol Officer position required more driving than the release approved. And it was their
understanding that the law required a six-month seizure free period before an individual could
drive a vehicle.
AWG relied on CMKA for information about plaintiff’s ability to perform his assignment
safely. AWG never requested or required plaintiff to submit medical documentation to AWG
about his fitness for duty or ability to return to work. Nor did AWG receive any medical
documentation from CMKA or plaintiff. Plaintiff does not recall anyone at AWG ever telling
him he needed a release to return to work, nor does he know if anyone at CMKA ever provided
any physician’s notes to AWG. After his seizure, plaintiff never had any conversations with any
AWG employees about his ability to drive. Other than a conversation with AWG employees
immediately after his seizure on June 25, plaintiff does not recall ever discussing his medical
condition with any AWG employees.

16

Dr. Ferguson was not convinced that plaintiff’s June 25 episode was a full-blown seizure. It only
lasted 45 seconds and plaintiff was hot, he hadn’t eaten, and he was overworked. So even though plaintiff
called it a seizure, Dr. Ferguson wasn’t comfortable referring to it as a seizure.

45

10.

Daily Activity Reports and Floor and Door Checks

Throughout July 2014, Mr. Burke and Mr. Harper sent several emails to the Asset
Protection Agents. On July 7, 2014, Mr. Burke sent one informing the Asset Protection Agents
that he had not been receiving Daily Activity Reports for each shift. Mr. Burke also advised the
Asset Protection Agents that they needed to complete a Daily Activity Report for every shift. On
July 14, 2014, Mr. Burke sent another message to them. It stressed that they must check the
doors on every shift. If the doors were unlocked, they needed to lock them and then report the
situation to Mr. Hulett and Mr. Burke.
On July 15, 2014, AWG issued a new post order identifying the offices that must be
checked once each shift. That same day, Mr. Burke sent an email to the Asset Protection Agents,
forwarding the prior email about checking doors/offices and providing a copy of the post order.
The next day, July 16, Mr. Burke sent an email to the Asset Protection Agents to remind
them that when no EMT/Patrol Officer was on duty, the Desk Officers were responsible to check
doors and turn off the lights. The email also listed which offices they must check. That same
day, Mr. Harper also sent an email to the Asset Protection Agents about internet usage.
Specifically, Mr. Harper admonished the employees for visiting pornographic sites. He
explained that AWG monitored the internet usage and if any of them visited a website that
registered as pornography, Mr. Burke would investigate it. Also that same day, Mr. Harper
instructed the Asset Protection Agents to perform floor checks when IT employees relieved them
for breaks. Mr. Harper wanted the Asset Protection Agents to use these breaks rather than arrive
early to do the floor checks at the beginning of the shift or stay late to do them at the end. Mr.
Harper explained, “This will eliminate the [overtime]. I spoke to Jerry [Burke] about this.” Doc.
65-13 at 2. Mr. Harper also directed that when they found doors unlocked, they should lock
them, and then notify Mr. Burke or Mr. Hulett in an email to address the situation. In plaintiff’s
46

experience, using IT employees to do floor checks during breaks was not a good option because
it took IT 60–90 minutes to respond when plaintiff contacted them about taking a break.
Plaintiff admits that he was reminded on multiple occasions about the need to perform
floor checks. He also admits that, on multiple occasions between June 2014 and August 2014,
he never went to the third floor to perform door checks there. He also agrees that “more often
than not” he failed to perform the required checks. Doc. 183-2 at 146 (Crumpley Dep. 365:4–6).
11.

Removal from AWG

At 5:33 a.m. on August 15, 2014, Ms. Morlan—an AWG employee—sent an email to
Mr. Burke and Mr. Hulett informing them that the Human Resources office doors were open and
unlocked when she arrived for her shift. After receiving Ms. Morlan’s email, Mr. Burke checked
plaintiff’s Daily Activity Logs. After checking plaintiff’s logs, it appeared that plaintiff made all
proper rounds. Mr. Burke also ran a badge swipe search on plaintiff and the other Desk Officers
to see if they had been performing their floor checks. The badge swipe records showed that
plaintiff rarely performed his floor checks and that he had not been to the second or third floor of
the AWG corporate building (required to conduct a proper floor check) on 34 of his 43 shifts
during June (before his seizure incident), July, and the first half of August 2014. This was a
serious concern for AWG.
Plaintiff agrees that he had not checked the third floor on several dates. Indeed, plaintiff
acknowledges that he had not been on the third floor on 79 percent of his assigned days between
June and August 2014. He also agreed that this failure was a significant performance issue.
Plaintiff explained that, at times, he decided not follow the directive to check the doors because it
required him to leave the desk, which he was required to staff.
Mr. Burke checked everyone’s badge swipes once plaintiff’s performance issues came to
light. He learned that other CMKA employees were not performing their floor checks either.
47

But, Mr. Burke did not believe these other employees’ performance issues had occurred to the
same extent as plaintiff during August 2014.
After reviewing plaintiff’s badge swipe records, Mr. Burke asked Mr. Hulett to contact
Mr. Harper and report that plaintiff was not performing his required rounds. At 7:55 a.m. on
August 15, 2014, Mr. Hulett sent the requested email. It explained:
The overnite desk officer found 2 HR doors open on one of her rounds last night.
These 2 offices are never to be left open. I need to know from [plaintiff] what time
City Wide left and if it was before the end of his shift why he did not see these
doors open and did not secure them.
Doc. 180-44. Thirty minutes later, in response to Mr. Hulett’s email, Mr. Burke sent an email to
Mr. Harper asking Mr. Harper to call him before calling plaintiff.
Later that morning, Mr. Burke had a phone conversation with Mr. Harper about
plaintiff’s failure to perform his door checks, the badge swipe records, and AWG’s concerns.
Specifically, Mr. Burke told Mr. Harper that plaintiff’s failure to perform his floor checks was “a
huge problem” for AWG. Doc. 180-12 at 15 (Burke Dep. 97:19–24). Mr. Harper specifically
asked Mr. Burke if he had checked the badge swipe records for other CMKA employees. Mr.
Burke confirmed he had. Plaintiff’s medical condition was not discussed or mentioned in these
phone call or emails between Mr. Harper and Mr. Burke.
Mr. Harper believed that AWG had directed CMKA to terminate plaintiff’s placement at
AWG and he followed that directive. Neither Mr. Burke nor Mr. Hulett ever said anything to
Mr. Harper suggesting that AWG wanted plaintiff removed from the AWG assignment because
he had a seizure or because of any medical condition. Also, Mr. Burke never said anything to
Mr. Harper suggesting that plaintiff’s medical condition was an issue for AWG. AWG made it
“pretty darn clear” to CMKA that they had concerns about plaintiff’s job performance. Doc.
180-7 at 15 (Smith Dep. 162:10–12).
48

Conversely, Mr. Burke said that CMKA made the decision to remove plaintiff from the
AWG Desk Officer position, AWG did not request it. But, Mr. Burke was not disappointed by
this decision and, ultimately, AWG agreed with the decision because of plaintiff’s various
performance issues—specifically, his failure to conduct floor checks. Mr. Burke believed that, if
AWG had employed plaintiff, plaintiff’s performance issues were sufficient cause to terminate
his employment.
Immediately after Mr. Harper’s call with Mr. Burke, Mr. Harper told Ms. Threadgill that
he was going to remove plaintiff from the AWG site because Mr. Burke had told him AWG did
not want plaintiff to come back. Mr. Harper also told her that he was trying to find another
location for plaintiff to work. Ms. Threadgill believed that Mr. Harper was looking for both
EMT and non-EMT positions for plaintiff.
At 9:32 a.m. on August 15, 2014, Mr. Harper sent an email to plaintiff about door checks
and making rounds: “I spoke with Jerry [Burke] this morning and you have not been checking
doors like you are supposed [to do]. My question to you is WHY? Jerry [Burke] has checked
the card swipe and you have not been up there in a while. I need an answer.” Doc. 180-46.
About half an hour earlier, at 9:00 a.m. on August 15, 2014, Mr. Burke sent an email to
Ms. Morlan. It instructed her as follows: “When you come in tonight please send Mark [Hulett]
and I an email about your conversation with [plaintiff] last night regarding what he told you
when he makes rounds to check doors.” Doc. 180-45. Just after midnight, Ms. Morlan sent an
email to Mr. Hulett and Mr. Burke. She explained her conversation with plaintiff in that email:
Last night I arrived at approximately 2330 hours and since City Wide had left prior
to my arrival, I went to make rounds and check doors. This is when I found Corp
HR doors unlocked. [Plaintiff] informed me that he had not made his rounds yet,
he was waiting for City Wide to leave. He informed me that he usually does not
make his rounds until [] before his shift is over. This is popular sometimes among
whomever is on evening shift, as City Wide is usually here until 2330–0000
49

cleaning still. I am not sure about when [plaintiff] checks doors and makes his
walk-thrus on the weekends or overnight shifts.
Doc. 180-47.
Both Mr. Burke and Mr. Hulett told the Desk Officers that they were required to perform
their floor checks as soon as possible after City Wide left. This was crucial based on the type of
information and documents maintained in these offices. Plaintiff understood during the time he
worked for CMKA that performing door checks was an important function of his job as a
security guard.
On August 19, 2014, Mr. Harper sent an email to Erin Neuberger at Cobalt Astra—an
agency providing Human Resources services to CMKA. This email sought advice about how to
remove plaintiff from the AWG assignment. He asked: “I am letting [plaintiff] go Friday, this is
the guy who had the seizure and his doctor cleared him. He works at Associated Wholesale
Grocers and they do not want him on property any more. What would be the best way to go
about this.” Doc. 180-48. The next day, Mr. Harper sent an email to Mr. Burke and Mr. Hulett
explaining:
I spoke with our H.R. and I will be bring[ing] [plaintiff] in Friday for his
termination,17 did Amber [Morlan] write a report on him telling the truth?18 Would
I be able to get a copy or an email on the details for our files by chance? If not I
completely understand. I just wanted to put it in his personal [sic] file.
Doc. 180-49 (footnotes added).
On August 21, 2014, Mr. Harper sent plaintiff an email saying that he needed to talk to
plaintiff the next day by phone or at the office. Twenty minutes later, plaintiff responded that he

17

Mr. Harper testified that he meant the word “termination” to describe plaintiff’s removal from the
assignment to AWG. Doc. 180-8 at 19–20 (Harper Dep. 164:21–165:1).

18

Mr. Harper referenced “telling the truth” because Mr. Burke or Mr. Hulett had told him at some point
that plaintiff had said he was doing his door checks. Yet they had discovered he was not. Id. at 20
(165:12–16).

50

was available by phone. Mr. Harper called plaintiff and told him that he was being removed
from the AWG assignment because the contract had changed, explaining that AWG was
reducing the number of security personnel. Mr. Harper later said that he was trying to “be nice”
to plaintiff by not telling him he was removed for performance issues when that was the true
reason he was removed. Doc. 180-8 at 22 (Harper Dep. 173:21–23).
CMKA was looking to place plaintiff in another position with Aberdeen Village in
Olathe, Kansas. Mr. Harper thought one of its guards was leaving and that the contract would be
renegotiated to include a raise. Mr. Harper thought the prospective Aberdeen position would
allow plaintiff to use his EMT training. Mr. Harper communicated his thoughts about the
Aberdeen position to plaintiff during the August 21 phone call.
After this phone call, plaintiff and Mr. Harper exchanged several emails. First, plaintiff
asked, “Just so we’re clear, this has nothing to do with my medical history right?” Doc. 180-51
at 1. Mr. Harper responded, “No it does not.” Id. at 2. Plaintiff then sent another email asking,
“Jeff what is the REAL reason I was released. I deserve to know. I know its not because of the
reason you told me because I just found the EXACT SAME posting I responded to originally on
Craigslist and it was only posted 2hrs ago. Is there even a position [at Aberdeen]?” Mr. Harper
responded, “Yes there is a position [at Aberdeen].” Id. at 2.19
Later, Mr. Harper told plaintiff that AWG had requested his removal. According to Mr.
Smith, CMKA’s COO, plaintiff was removed from the AWG assignment on August 21, 2014
because he didn’t do his job properly. He said that plaintiff’s seizure was discussed, “they tried
to make it fit at the front desk, and then his job performance wasn’t good enough to stay.” Doc.
176-1 at 12 (Smith Dep. 131:12–19). Plaintiff was not terminated by CMKA at that time.

19

In 2014, CMKA constantly was interviewing candidates for positions at AWG, particularly for the
EMT/Patrol Officer position.

51

On October 7, 2014, Mr. Smith sent an email expressing his opinion why plaintiff was
removed from AWG. Mr. Smith explained that plaintiff “periodically passes out,” “his duties
included driving an AWG vehicle,” and “he worked the night shift at the lobby desk where very
few people enter.” So Mr. Smith said CMKA had “[n]o choice.” He also added “the customer,
AWG didn’t want that liability for their sake of his own [sic].” Doc. 65-11. When asked if
anyone had ever told him that plaintiff was removed from AWG due to liability concerns, Mr.
Smith said that they had not.
Since his last day on the AWG jobsite, plaintiff never has spoken with an AWG
employee.
12.

Alleged Termination from CMKA

Several weeks after plaintiff was removed from AWG, Ms. Threadgill had not heard
from plaintiff. So she contacted him about bringing in his uniforms and picking up his final
check. She did not speak with Mr. Harper before making this phone call. While she was on the
phone with plaintiff, Mr. Harper overheard the conversation and interrupted her, telling her that
plaintiff did not need to turn in his uniforms because Mr. Harper was still trying to find work for
him. Ms. Threadgill relayed this information to plaintiff.
Mr. Harper never told plaintiff he was terminated from his employment with CMKA. He
explicitly told plaintiff that he still was considered a CMKA employee, but they simply did not
have any job assignments for plaintiff at that time.
Sometime after this phone call between plaintiff and Ms. Threadgill, plaintiff brought in
his uniforms, spoke briefly with Ms. Threadgill, and picked up his paycheck. Ms. Threadgill
accepted the uniforms and did not ask him any questions. Plaintiff did not tell Ms. Threadgill
why he was turning in the uniforms. He later explained that he returned his uniforms because
Ms. Threadgill told him to bring them in and pick up his final check. Although Ms. Threadgill
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never specifically told him his employment at CMKA was terminated, plaintiff interpreted her
request for his uniforms and for him to pick up his final check as an indication he was
terminated.
Mr. Harper believed that plaintiff voluntarily resigned his employment when he returned
his uniforms to CMKA after being told that CMKA was still trying to find him work. Ms.
Threadgill does not believe Mr. Harper terminated plaintiff’s employment. Mr. Smith said that
he would defer to Mr. Harper about whether plaintiff ultimately was terminated from CMKA’s
employment. It was Mr. Smith’s belief that plaintiff was still an on-call employee and would be
contacted by CMKA if an opportunity came up—though one never did.
Under the CMKA Employee Handbook, plaintiff could have appealed any termination
from employment. But he did not take an appeal.
Plaintiff concedes that he signed off on the Daily Activity Logs reporting that he
conducted floor and door checks even though he did not. He agrees that he was, in essence,
falsifying records and being untruthful with CMKA during his employment there. He also
agrees that this represented a serious performance issue. Plaintiff concedes that by falsifying
records and failing to perform his door checks at CMKA, he exhibited untrustworthiness, and
therefore lacked one of the skills referenced in the job posting. Plaintiff also agrees that
trustworthiness was an important required skill for a security guard because his responsibilities
included checking offices, where AWG kept important documents, and securing the facility. He
concedes that trustworthiness was more important than other skills, such as physical conditioning
and appearance. Plaintiff also concedes that by falsifying records, he violated one of the rules in
CMKA’s Employee Handbook. This Handbook references falsification of records in the
“Causes for Termination” section and recites that such conduct may provide for immediate

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termination from employment. Plaintiff does not contend that the performance issues cited by
CMKA are fabricated. Plaintiff agrees that, based on CMKA’s Employee Handbook and the
significant performance issues he had, CMKA had legitimate grounds to terminate his
employment had they wanted to do so.
Plaintiff applied for unemployment after leaving his employment from CMKA. On the
application, he named CMKA as his employer, but he did not include AWG as his employer.
Also, plaintiff’s LinkedIn resume shows that he worked for CMKA and that AWG was CMKA’s
client. The resume does assert that he worked at an AWG location.
13.

Discrimination

Before June 25, 2014, plaintiff did not have any concerns about disability discrimination
by CMKA based on his seizure disorder. Also, plaintiff had no complaints of discrimination or
differential treatment based on the nature of the position that he was given after his June 25,
2014 seizure. Mr. Harper never made any comments to plaintiff that plaintiff considered to be
derogatory or negative with respect to his medical condition during the time he worked for
CMKA.
Plaintiff did not complain about disability discrimination to Ms. Threadgill in his phone
call with her after his removal from the AWG assignment. Generally, plaintiff was not unhappy
with the way CMKA treated him while he worked for them. Plaintiff believed he was
discriminated against, partly, because initially, he incorrectly believed he was removed from the
AWG jobsite just days after his June 25 seizure. Also, plaintiff believed that if his job
performance had been an issue, it would have been handled before his June 25 seizure.
Plaintiff never reported to Mr. Burke that he felt like he was being treated differently
because of his disability. Mr. Burke did not receive any reports from anyone who believed

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plaintiff was being discriminated against. Mr. Burke never went to Mr. Harper or Mr. Smith to
raise concerns of discrimination or harassment.
In sum, plaintiff never complained of disability discrimination to CMKA or AWG before
his termination from employment.
a.

Reasonable Accommodations

The only reasonable accommodation plaintiff ever requested was to take the rest of June
25, 2014, off from work. CMKA granted that request. Plaintiff never asked CMKA after June
25, 2014, to engage in a conversation about what else plaintiff might need to accommodate him
to do his job. And plaintiff never contacted Cobalt Astra, as indicated in the CMKA Employee
Handbook, to request any reasonable accommodation. In short, CMKA and AWG never
discussed any other accommodations with plaintiff. And plaintiff could not recall any time that
CMKA or AWG refused to talk with him about possible accommodations.
Plaintiff did not believe he needed any type of accommodation for the work he performed
at AWG. He believed he could perform the essential functions of the job while employed with
CMKA and AWG.
CMKA never told plaintiff that he was being terminated from his position at AWG or
from his employment with CMKA because of his seizure disorder.
b.

Similarly Situated Employees and Comparable Conduct

AWG terminated Deborah Miller in 2012 for failing to perform floor checks and
falsifying records. An issue arose about Ms. Miller taking excessive breaks, so Mr. Burke
looked at her daily reports, checked her badge swipe records, and looked at video. The evidence
showed that she had not been doing floor checks and had never gone to the second and third
floors. Mr. Burke verified this by checking her badge swipes. Ms. Miller had represented in

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writing that she had performed her floor checks when, in fact, she had not done so. She falsified
records. Mr. Burke did not know whether plaintiff falsified records. But Mr. Burke believed
plaintiff’s situation and Ms. Miller’s situation were similar.
Defendants assert that Charmaine Jones is another employee who is similarly situated to
plaintiff. Mr. Burke contacted Mr. Harper more than once about CMKA’s employee Charmaine
Jones because she failed to come to work at a designated shift. After Mr. Burke first contacted
CMKA about Ms. Jones missing a shift, CMKA counseled her and she returned. CMKA,
however, was contacted several more times about Ms. Jones missing shifts. CMKA did not
continue placing Ms. Jones at AWG.
B.

Legal Standard

Summary judgment is appropriate if the moving party demonstrates that “no genuine
dispute” exists about “any material fact” and that it is “entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). When it applies this standard, the court views the evidence and draws
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). “An issue of fact is ‘genuine’ ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if
under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (citing Trainor v. Apollo
Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the moving

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party “need not negate the non-movant’s claim, but need only point to an absence of evidence to
support the non-movant’s claim.” Id. (citing Sigmon v. CommunityCare HMO, Inc., 234 F.3d
1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at
670 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
Instead, it is an important procedure “designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
C.

Analysis

Plaintiff argues he is entitled to partial summary judgment on the question whether he is
disabled for purposes of the ADA. Conversely, CMKA contends that plaintiff is not disabled
and it is entitled to summary judgment against plaintiff’s ADA discrimination and retaliation
claims in their entirety. AWG contends it, too is entitled to summary judgment against
plaintiff’s ADA discrimination and retaliation claims. AWG also argues it is entitled to
summary judgment because no reasonable jury could find that it was plaintiff’s employer.
The Tenth Circuit analyzes ADA discrimination and retaliation claims based on
circumstantial evidence under the McDonnell Douglas20 analytical framework. See Dewitt v. Sw.

20

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017) (applying McDonnell Douglas framework to
ADA discrimination claim); Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1186 (10th Cir.
2016) (applying McDonnell Douglas framework to ADA retaliation claim). Under the
McDonnell Douglas burden-shifting framework, the court must apply a three-step analysis:
(1) First, the plaintiff must establish a prima facie case of discrimination or
retaliation,
(2) If the plaintiff satisfies this initial burden, the defendant employer must offer a
legitimate non-discriminatory reason for the adverse employment action; and
(3) The burden then shifts back to the plaintiff who must show there is at least a
genuine issue of material fact as to whether the employer’s proffered legitimate
reason is genuine or pretextual.
Dewitt, 845 F.3d at 1307 (internal quotation marks and citations omitted).
To establish a prima facie case of discrimination under the ADA, plaintiff must show:
“(1) he is disabled as defined under the ADA; (2) he is qualified, with or without reasonable
accommodation by the employer, to perform the essential functions of the job; and (3) he was
discriminated against because of his disability.” Adair, 823 F.3d at 1304 (citing Hawkins v.
Schwan’s Home Serv., Inc., 778 F.3d 877, 883 (10th Cir. 2015)).
To establish a prima facie case of retaliation under the ADA, plaintiff must show: “(1) he
engaged in a protected activity; (2) he was subjected to an adverse employment action
subsequent to or contemporaneous with the protected activity; and (3) there was a causal
connection between the protected activity and the adverse employment action.” Foster v.
Mountain Coal Co., LLC, 830 F.3d 1178, 1187 (10th Cir. 2016) (internal quotation marks,
correction, and citation omitted).
CMKA argues that it deserves summary judgment because, as a matter of law, plaintiff
cannot establish a prima facie case of either a discrimination or retaliation claim. And even if

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plaintiff could do so, CMKA argues, he has not adduced admissible evidence from which a
reasonable jury could find pretext. In short, CMKA says, no triable issue exists about pretext.
AWG joins these arguments.
But as a threshold issue, AWG argues it was not plaintiff’s employer and so, as a matter
of law, it could not violate plaintiff’s rights under the ADA. The court begins with this question
because if AWG wasn’t plaintiff’s employer, he cannot prevail on either of his claims against
AWG.
1.

AWG was not Plaintiff’s Employer

At the very least, AWG’s argument begins with a correct premise. To make a prima facie
case of discrimination or retaliation under the ADA, plaintiff first must prove that AWG was his
employer. See Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1225 (10th Cir. 2014)
(requiring plaintiff, to make a prima facie case of wage discrimination and retaliation under Title
VII, to prove defendant was her employer); see also Bennett v. Henderson, 15 F. Supp. 2d 1097,
1112 (D. Kan. 1998), aff’d, 172 F.3d 62 (10th Cir. 1999) (“The elements of the prima facie case
of retaliation are the same whether a plaintiff proceeds under the . . . ADA . . . or Title VII.”).
Depending on “the situation” at hand, the Circuit instructs the court to “choose[] among
three different tests to determine whether a defendant is an employer.” Knitter, 758 F.3d at
1225–26. They are: (1) the hybrid test; (2) the joint-employer test; and (3) the single-employer
test. Id. at 1226. Here, the court applies the joint-employer test because plaintiff claims both
AWG and CMKA were his employers. See Doc. 173 (Pretrial Order) at 3 (plaintiff’s
contentions, asserting that “in 2014, he was an employee of both Defendant AWG and Defendant
CMKA.”).
Under the joint-employer test,

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[T]wo entities are considered joint employers if they share or co-determine those
matters governing the essential terms and conditions of employment. Both entities
are employers if they both exercise significant control over the same
employees. An independent entity with sufficient control over the terms and
conditions of employment of a worker formally employed by another is a joint
employer . . . .
Knitter, 758 F.3d at 1226 (internal quotation marks and citations omitted). The right to terminate
an employment relationship is the most important factor demonstrating control over the terms
and conditions of the employment. Id. (citing Bristol v. Bd. of Cty. Comm’rs, 312 F.3d 1213,
1221 (10th Cir. 2002) (en banc)). Courts also consider other factors, including: “[T]he ability to
promulgate work rules and assignments, and set conditions of employment, including
compensation, benefits, and hours; day-to-day supervision of employees, including employee
discipline; and control of employee records, including payroll, insurance, taxes and the like.” Id.
(internal quotation marks, corrections, and citation omitted).
AWG argues that plaintiff has failed to assemble sufficient admissible evidence
permitting a reasonable jury to find that AWG was his joint employer. Plaintiff has adduced
admissible evidence to support some of the factors. But the summary judgment record need not
be devoid of admissible evidence supporting plaintiff’s position under these factors. Instead,
“taking all the factors together,” the court must determine whether AWG’s control over plaintiff
was sufficient for a reasonable jury to find that AWG was his joint employer. See id. (affirming
summary judgment against plaintiff because defendant lacked authority to terminate plaintiff
and, taking all the factors together, defendant’s authority to supervise and enforce rules were not
a sufficient basis for a reasonable jury to find that defendant was plaintiff’s joint employer). The
next five subsections analyze this proposition using the factors applied by the joint-employer
test.

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a.

Power to Hire or Terminate

When determining whether a company is a joint employer, the most important factor is
the right to terminate employment. Id. Under this factor, the Tenth Circuit has considered both
“whether the alleged joint employer had [an] impact on the hiring decision and had the ability to
terminate” the employment relationship. Banks v. St. Francis Health Ctr., Inc., No. 15-CV2602-JAR, 2016 WL 6905581, at *13 (D. Kan. Nov. 21, 2016) (citing Sandoval v. City of
Boulder, Colo., 388 F.3d 1312, 1324 (10th Cir. 2004)).
The summary judgment record here includes no evidence capable of supporting a
reasonable finding that AWG had the power to hire or fire plaintiff. The Agreement between
AWG and CMKA provided that CMKA was responsible to hire all Asset Protection Agents
unless AWG otherwise agreed.
Plaintiff responds to this undisputed fact by asserting that AWG has failed to establish
that it did not otherwise agree. Doc. 199 at 63. But this argument misapprehends how summary
judgment works. Because the employment relationship is an element of his prima facie case,
plaintiff bears the burden to prove that AWG was his employer—or, as he theorizes here, one of
his two joint employers. Knitter, 758 at 1225. With its summary judgment motion, AWG placed
this element in dispute. That is all it must do. As the Circuit has explained, AWG “need not
negate [plaintiff’s] claim, but need only to point to an absence of evidence to support [plaintiff’s]
claim” that AWG was his joint employer. Kannady, 590 F.3d at 1169.
While it was not incumbent on AWG to adduce evidence negating this element of
plaintiff’s claim, AWG nonetheless did so. The summary judgment facts establish that plaintiff
never submitted an employment application to AWG. He never interviewed with AWG.
Instead, plaintiff applied to CMKA after noticing a Craigslist post made by CMKA. He then

61

interviewed with two of CMKA’s supervisory employees. And when CMKA hired plaintiff,
they sent him two letters. The letters confirmed CMKA’s offer of employment and described the
terms and conditions of his employment with CMKA—specifically, that he was an at-will
employee of CMKA. These uncontroverted facts support a conclusion that CMKA, but not
AWG, had the power to hire and fire plaintiff. See Banks, 2016 WL 6905581 at *14–15 (finding
that the entity who “posted the job requisition, conducted the interview, and hired Plaintiff
through [an] offer letter” that “maintained the right to terminate the employment” had the power
to fire plaintiff).
Trying to meet his burden to adduce admissible evidence permitting a reasonable jury to
find that AWG was his joint employer, plaintiff argues that he was hired to fill a position based
on a site owned and operated by AWG. The summary judgment record surely supports this fact.
But what plaintiff’s argument lacks is legal authority suggesting that this fact makes AWG his
employer. Plaintiff has cited no such authority, and the court is aware of none.
Indeed, the precedent from our court—and, more broadly, our Circuit—directly
contradicts plaintiff’s theory. For example, Chief Judge Robinson granted summary judgment
against plaintiff’s joint-employer theory in Banks. And the summary judgment facts there about
the power to hire were substantially similar to the ones here. See id. *6–7. For example, the
Banks plaintiff argued that a Topeka, Kansas, hospital was plaintiff’s joint employer even though
a separate company had hired her to provide services under a contract between Conifer—the
hiring company—and the defendant hospital. Specifically, Conifer had posted the job requisition
for a position at the hospital. Plaintiff applied for the position through Conifer, not defendant.
And plaintiff interviewed with Conifer, not defendant. Also, Conifer sent plaintiff a letter
offering employment with Conifer as an at-will employee. The letter included plaintiff’s

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compensation arrangement. Banks held, on summary judgment, that the hospital was not
plaintiff’s joint employer.
Plaintiff also argues that a reasonable jury could infer that AWG possessed authority to
hire plaintiff—or hire him jointly—because CMKA’s Mr. Smith sent an email to AWG’s Mr.
Burke two months after CMKA had hired plaintiff. In this email, CMKA kept AWG informed
about the status of CMKA’s hiring efforts. Specifically, Mr. Smith advised that CMKA was
going to send a candidate—not plaintiff—over to the AWG facility after he completed his
background check and initial drug screening. Plaintiff contends that some of the words in that
email provide a basis for a jury to find that AWG had participated in the decision to hire
plaintiff. Namely, plaintiff says, CMKA’s email mentions that Mr. Smith from CMKA had
attended candidate interviews himself so he would have a better understanding “of who to select
. . . or at least [who] to offer to [AWG] as a candidate.” Doc. 180-27 at 2 (ellipse in original).
Plaintiff argues that the second half of this phrase suggests that AWG had “almost unlimited
control” over the hiring of employees. Doc. 199 at 63–64.
Plaintiff also asks the court to draw two significant inferences from these facts. First, he
asks the court to infer that the statement in CMKA’s email establishes that AWG had the power
to hire Asset Protection Agents in May 2014. And second, he argues that the email shows—
although the email does not reference plaintiff’s hiring process—that AWG had possessed the
power to hire plaintiff some two months earlier. But no reasonable jury could conclude that
CMKA’s email supports the inferences plaintiff tries to project onto it. AWG was the company
purchasing services from CMKA. Allowing AWG to offer input about which one of CMKA’s
employees CMKA might use to fulfill its contractual obligation to AWG does not transform
AWG into that person’s employer. In short, plaintiff tries to stack one irrational inference on top

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of another to create a properly triable issue. This tactic will not suffice. See Gregg v. Ohio
Dep’t of Youth Servs., 661 F. Supp. 2d 842, 859 (S.D. Ohio 2009) (“While courts are required to
draw every reasonable inference in favor of the party opposing summary judgment, they are not
permitted to stack inference upon inference to preserve an issue for the jury.” (citing Taylor v.
Mich. Dept. Of Corr., 69 F.3d 76, 86 n. 2 (6th Cir. 1995) (Wellford, J., dissenting))).
From Mr. Smith’s email to AWG, a jury properly could infer that AWG was invited to
provide input about which one of CMKA’s employees it preferred. For instance, later in the
email, Mr. Smith told AWG of his plan to send the candidate to AWG “for a look by” Mr. Burke
and AWG’s Kansas City Security Supervisor. Doc. 180-27 at 2. But neither this email nor any
other admissible evidence establishes that AWG’s recommendation determined whether CMKA
would hire the candidate. Also, Mr. Smith indicated that the candidate would not go to AWG
until after he had completed his background check and initial drug screening—activities
generally reserved for later in the hiring process. And most importantly, nothing in the summary
judgment record shows that AWG ever made a recommendation about this candidate or any
other—including plaintiff.
While this factor considers a company’s ability to provide input about a hiring decision,
no court has defined the level of input that amounts to the requisite power to hire. And plaintiff
has cited no authority suggesting a client’s ability to make recommendations to a vendor equates
to the power to hire. Indeed, in other contexts, authority suggests just the opposite.
In Fair Labor Standards Act cases, when courts decide whether a company was an
employer, they also consider the power to hire and fire employees. Copantitla v. Fiskardo
Estiatorio, Inc., 788 F. Supp. 2d 253, 308 (S.D.N.Y. 2011) (“In Carter v. Dutchess Community
College, 735 F.2d 8 (2d Cir. 1984), the court noted that the ‘economic reality’ test ‘include[d]

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inquiries’ into four factors: ‘whether the alleged employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules or conditions of
employment, (3) determined the rate and method of payment, and (4) maintained employment
records.’ 735 F.2d at 12.”).
In Copantitla, the court held that one of the defendants was not the plaintiffs’ employer.
Id. at 310. Reaching this conclusion, the court explained that this defendant only had the power
to make recommendations about hiring and firing. Specifically, this defendant’s
recommendations could be disregarded. Also, the court noted that plaintiffs provided no
evidence indicating that this defendant had played “any other role with respect to hiring and
firing, or that her recommendations played a material role in any employee being hired.” Id.
Although Copantitla uses a different test overall to determine whether an employment
relationship existed, the factors are substantially similar. So, the analysis of the power to hire
and fire factor in Copantitla is instructive.
Here, plaintiff suffers from the same problems as the Copantitla plaintiffs. He has failed
to adduce any evidence that CMKA had to heed AWG’s recommendations. Also, plaintiff
shows no facts in the summary judgment record that AWG did more than make a
recommendation, or that its recommendations played a material role in plaintiff’s hiring. In sum,
even when viewed in the light most favorable to plaintiff, this lone email provides no basis for
finding that AWG had the power to hire plaintiff.
Next, the court considers the second part of this factor—the power to terminate plaintiff’s
employment. As noted, the governing cases recognize this power as the “most important” factor
in the joint-employer test. Knitter, 758 F.3d at 1227 (citing Bristol, 312 F.3d at 1221). Here, the

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summary judgment facts establish that AWG lacked the capacity to terminate plaintiff’s
employment.
Under the Agreement between CMKA and AWG, AWG could reject any Asset
Protection Agent assigned by CMKA to the AWG facility. But the right to reject an employee
designated by a contractor does not equal the right to terminate the employee’s employment with
another company. See Doc. 48 at 5 (“AWG’s ability to ask that [CMKA] no longer assign
plaintiff to AWG does not mean that AWG had the right to terminate plaintiff.” (first citing
Knitter, 758 F.3d at 1229; then citing Banks v. St. Francis Health Ctr., Inc., No. 15-CV-2602JAR, 2016 WL 1298056, *3 (D. Kan. Mar. 31, 2016) (deciding a Motion to Dismiss)). Both
Knitter and Banks support the conclusion that plaintiff must adduce evidence that AWG
possessed a right greater than the right to reject an employee for assignment to its premises. See
Knitter, 758 F.3d at 1229 (finding no genuine dispute whether defendant lacked the power to fire
and defendant could, at most, request that plaintiff’s employer reassign her to a different
location); Banks, 2016 WL 6905581 at *13 (holding on summary judgment that defendant had
no power to terminate based on an ability to request reassignment); see also Zinn v. McKune, 143
F.3d 1353, 1358 (10th Cir. 1998) (affirming summary judgment by finding plaintiff was not the
defendant’s employee, in part, because “[alt]hough the [defendant] retains the right to request
removal of [the contractor’s] personnel with whom it is dissatisfied, and did so in this case, [the
contractor] alone exercises control over the hiring and firing of [the contractor’s]
personnel.”); Palage v. HCA-HealthONE, LLC, No. 11-CV-01285-LTB-CBS, 2012 WL
5493998, at * 6 (D. Colo. Nov. 13, 2012) (granting summary judgment for defendant because
“[a]lthough [defendant] did have the contractual ability to request the re-assignment of [the

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contractor’s] employee assigned to its facilities, this does not equate to either hiring or firing [the
contractor’s] employees.”).
Trying to establish a genuine dispute about whether AWG held power greater than
simply the capacity to request plaintiff’s reassignment, plaintiff relies on mischaracterization and
conjecture. First, plaintiff notes that AWG told CMKA that it did not want CMKA to terminate
plaintiff because of his disability. And plaintiff contends that this statement—combined with the
fact that he was not fired—supports a reasonable inference that AWG controlled plaintiff’s
termination. The court declines to adopt plaintiff’s curious reasoning. To equate a statement
encouraging a contract partner to comply with the federal employment law as evidence of control
is simply too great a reach to count as a reasonable inference.
Plaintiff also argues that when CMKA’s Mr. Harper told AWG’s Mr. Burke that he was
going to bring plaintiff in for his termination, he was acting on AWG’s behalf by firing plaintiff.
Importantly, even plaintiff’s view of the summary judgment record shows that plaintiff was not
fired from CMKA then. He simply was removed from AWG. This email demonstrates that Mr.
Harper was removing plaintiff from his assignment at AWG as AWG had requested and does not
mean that AWG possessed the right to terminate his employment.
Finally, plaintiff contends that Mr. Harper’s May 29, 2014 email to plaintiff, explaining
that AWG controlled the EMT training and CMKA had to abide by AWG’s wishes,
demonstrates that CMKA “would do whatever Defendant AWG wanted with regard to Plaintiff’s
employment.” Doc. 199 at 64. To draw this inference based on the fact that AWG controlled
aspects of plaintiff’s training—as plaintiff urges—is simply too great a leap. See Banks, 2016
WL 6905581 at *15 (granting summary judgment to defendant against joint-employer theory
even though defendant had provided plaintiff training about its electronic record keeping systems

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and human resources policies, and conducted a general orientation on defendant’s policies and
procedures).
Plaintiff fails to demonstrate a genuine issue of material fact about AWG’s power to hire
him or terminate his employment—the most important factor determining joint-employment.
b.

Rules, Assignments, and Training

Next, AWG argues that it did not promulgate work rules, issue work assignments, or
provide training beyond those expected of a contractual vendor-client relationship. Under the
Agreement, CMKA was responsible for providing uniforms, training, and supervision of the
Asset Protection Agents. And their conduct was governed by policy, rules, and post orders that
CMKA and AWG agreed on.
Here, although plaintiff has adduced some evidence showing AWG promulgated
plaintiff’s on-site rules, the summary judgment record does not establish a level of control
sufficient for a reasonable jury to conclude AWG was plaintiff’s joint employer. When CMKA
hired plaintiff, plaintiff received a CMKA Employee Handbook, reviewed it, and signed a form
acknowledging that he understood the policies in it. Plaintiff received no such handbook from
AWG. While assigned to the AWG site, the post orders governed plaintiff’s conduct. These
post orders were maintained in a reference manual for the Desk Officers to use. CMKA had a
right under the Agreement to consult on the post orders, but generally AWG created them.
CMKA could review the post orders and notify AWG of any concerns but, to Mr. Harper’s
recollection, CMKA never had requested any changes to them. But Mr. Harper always believed
AWG had the final approval authority on post orders. So CMKA could provide input, but AWG
had more control of the on-site rules.

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Plaintiff’s overall conduct was governed by the CMKA Employee Handbook. This
handbook, among other things, addressed time off and several “on the job” topics such as
conduct, appearance, and scheduling. So, although AWG largely controlled the post orders,
CMKA had input and CMKA controlled the policies governing plaintiff’s conduct. Accordingly,
there is no basis for a reasonable jury to infer that AWG’s control over plaintiff’s rules exceeded
those typical of a vendor-client relationship. See Banks, 2016 WL 6905581 at *15–16
(concluding that the work rules did not exceed the vendor-client relationship when defendantclient required plaintiff to comply with its rules, but vendor promulgated plaintiff’s work rules
and vendor’s policies governed plaintiff).
The facts in the summary judgment record establish that CMKA also determined
plaintiff’s assignments. CMKA assigned plaintiff to work at AWG and could reassign him as it
pleased. Plaintiff knew that CMKA possessed this control. He asked CMKA—not AWG—to
reassign him because he was not receiving EMT hours while stationed at AWG’s premises.
Plaintiff argues that AWG had significant control of his assignments. He bases this on
three incidents. First, CMKA’s Mr. Harper adjusted plaintiff’s schedule when he mistakenly
scheduled plaintiff for a double shift and AWG brought it to Mr. Harper’s attention. Second, Mr.
Harper cautioned the Asset Protection Agents against overtime after a discussion with AWG.
And third, Mr. Harper explained to plaintiff that his EMT training had to be deferred because of
AWG’s wishes.
None of these, separately or together, establishes a basis for a reasonable jury to conclude
that AWG controlled plaintiff’s work assignments. CMKA assigned plaintiff his work hours.
Plaintiff has noted three isolated incidents and says they amount to control. Under the
Agreement, AWG had to pay CMKA time and a half for overtime worked by CMKA’s

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employees designated to work at AWG’s site. So AWG’s steps to minimize its overtime
obligations does not demonstrate control of work assignments. Finally, AWG heavily relied on
two of its own employees for EMT duties. So, Mr. Harper noting that CMKA had to comply
with AWG’s wishes about postponing plaintiff’s EMT training does not show control.
In Banks, defendant’s employee provided plaintiff a list of patients to see each day and
required her to conduct extra duties. 2016 WL 6905581 at *16. The court found this
relationship did not exceed the vendor-client relationship because the patient assignment was
designed to satisfy the vendor-client agreement. And the vendor approved the extra duties. Id.
Here, Mr. Burke’s occasional reminders about overtime to Mr. Harper and Mr. Burke’s
oversight of CMKA’s scheduling is far less prevalent than the work assignment in Banks. The
court thus concludes that plaintiff failed to establish a genuine dispute about whether AWG
controlled plaintiff’s work assignment.
Finally, AWG argues that it only provided limited training on desk officer and EMT
duties. Plaintiff responds that, in fact, AWG had substantial control of this training. Plaintiff
relies on Mr. Harper’s statements that: (1) AWG would tell CMKA when plaintiff’s desk officer
training was complete and (2) he did not know if plaintiff completed his EMT training because
sometimes they notified CMKA and sometimes they didn’t.
The training inquiry considered by this factor focuses on the amount of training. See
Banks, 2016 WL 6905581 at *15 (determining defendant provided training “beyond that
typically provided within a vendor-client relationship”). In Banks, the defendant provided
training beyond orientation and training about the hospital systems because it also provided
training about patient accounts, diversity, and other regularly scheduled training. Id. Here, there
are no facts in the summary judgment record to establish AWG provided training beyond general

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orientation and AWG’s systems. Instead, for Desk Officer duties, AWG trained plaintiff about
the process for conducting background checks and the areas to monitor using the video monitors.
And for EMT duties, AWG would have trained plaintiff about AWG protocols, location of
equipment, and similar topics. No reasonable jury could find that these topics exceed the scope
of orientation and systems training.
So, the summary judgment record, even when viewed in plaintiff’s favor, does not show
that AWG promulgated work rules, issued work assignments, or provided training beyond those
expected of a normal contractual vendor-client relationship.
c.

Supervision and Discipline

Next, AWG argues that it did not exercise sufficient supervision and discipline to
establish a joint-employer relationship. “Some degree of supervision and even discipline is to be
expected when a vendor’s employee comes on another business’s work site.” Id. at 17 (citing
Knitter, 758 F.3d at 1230). “Supervision that is limited and focuses on workplace safety issues
typically will not be considered the type of supervision indicating joint employers.” Id. (citing
Knitter, 758 F.3d at 1230). “Courts should consider whether supervision extended to such
matters as training or formal performance evaluations provided to employees.” Id. (citing
Knitter, 758 F.3d at 1230) (other citation omitted).
In Knitter, the defendant’s supervision was limited to dress code and safety harness
requirements. 758 F.3d at 1230. Defendant supervised plaintiff’s daily work by providing
instruction about how to perform certain tasks, and notified plaintiff if her work did not meet
defendant’s standards. Id. But it did not include training or formal performance. Id.
Ultimately, the Tenth Circuit determined the level of supervision was consistent with a clientvendor relationship and did not make defendant a joint employer. Id.

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In Banks, our court found that one of defendant’s employee’s supervisory role went
beyond what Knitter discussed. Banks, 2016 WL 6905581 at *18. This employee was on-site
and told plaintiff she was her supervisor. She assigned plaintiff daily tasks and provided some
training. So the court found that her role exceeded simple direction on limited tasks. Even
though this single employee’s role exceeded simple direction, the court determined that
defendant’s supervisory power insufficient to create an employment relationship. Although the
vendor did not have a supervisor on-site, plaintiff was in close contact with the vendor’s
supervisory employees. And importantly, the vendor conducted performance evaluations, not
the defendant. Id.
Here, AWG had an employee that exercised some supervisory control over plaintiff—
Ms. Morlan. The summary judgment record establishes that Ms. Morlan trained plaintiff about
Desk Officer duties—which the summary judgment record establishes was within the scope of a
client-vendor relationship—and she determined when plaintiff was ready to take his own shift.
Beyond that, she sent an email to Mr. Burke and Mr. Hulett about a conversation she had with
plaintiff after she found doors unlocked. During the conversation, she asked plaintiff when he
checked the doors. Plaintiff contends that Ms. Morlan’s conversation with plaintiff and her
following email to AWG employees suggests AWG had supervisory control of plaintiff. No
reasonable jury could conclude that this level of supervision was a sufficient basis for AWG to
be plaintiff’s joint employer. The court rejects plaintiff’s argument.
Ms. Morlan had minimal supervision of plaintiff during his training which culminated
when he was ready to take his own shift. And Ms. Morlan’s email does not suggest that she was
supervising plaintiff’s duties. Instead, she relieved plaintiff and found doors unlocked so she
asked when he did his rounds—a reasonable peer-to-peer question. Then, she reported to her

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supervisors who, in turn, reported it to plaintiff’s supervisors at CMKA. Ms. Morlan’s
supervision never rose to the level described in Banks. Indeed, plaintiff understood that Mr.
Harper was his supervisor who monitored his performance. And plaintiff generally
communicated with CMKA supervisory employees when he had questions or issues arose.
Plaintiff next argues that AWG’s monitoring of internet usage and the badge swipe check
suggests AWG supervised plaintiff’s performance to the minute detail. This overstates AWG’s
supervision.
The facts show that Mr. Burke was notified when anyone sitting at the front desk visited
a pornographic site—Asset Protection Agent, AWG employee, or anyone else. A monitoring
system is common practice to ensure computers are not misused. And no reasonable jury could
find that AWG’s use of one suggests supervision sufficient to establish control. Also, there are
no facts in the record that any AWG employee checked the badge swipe records other than when
Mr. Burke was alerted that plaintiff had not completed his rounds. Plaintiff thus has not
established a genuine dispute about whether AWG supervised him.
Consistent with the level of supervision, CMKA primarily disciplined plaintiff. When
concerns with plaintiff’s performance arose, CMKA addressed them with plaintiff. Specifically,
AWG had concerns about plaintiff’s appearance, computer usage, and his door checks. AWG
contacted CMKA about those concerns and CMKA then addressed them with plaintiff. Plaintiff
argues that CMKA simply was an intermediary for AWG’s wishes—like a senior to middle
manager relationship. And AWG was instructing CMKA how to discipline a subordinate. But
this is not a reasonable inference.
AWG had supervisors on site that could observe plaintiff’s appearance, while CMKA did
not. And AWG had access to the computer system and the badge swipe records, not CMKA. So

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AWG communicated its observations to CMKA for CMKA action. There are no facts in the
record suggesting AWG ever followed up with CMKA to determine if CMKA followed its
wishes—something a senior manager would do to a middle manager. Thus, plaintiff provides no
factual support for this argument.
Plaintiff does note that AWG was “getting on” him about leaving the desk for extended
periods of time to check doors and turn off lights. No reasonable jury could conclude that this
minimal disciplinary role goes beyond a client-vendor relationship. See Banks, 2016 WL
6905581 at *18 (finding that a write up submitted to Human Resources did not exceed the
vendor-client relationship).
d.

Compensation, Benefits, and Hours

The uncontroverted facts also establish that CMKA, not AWG, controlled plaintiff’s pay
and benefits. CMKA set his pay rate and provided insurance, reimbursement of licensing fees,
and an employee stock ownership plan. Plaintiff contends that AWG indirectly paid plaintiff and
CMKA just took its cut. Our Circuit rejected this very argument in Knitter. 758 F.3d at 1229.
In Knitter, plaintiff was a “handyman” for a general contracting company. Id. That
contracting company had one client during the time at issue—defendant property management
company. Plaintiff argued that defendant indirectly paid her because it set flat rates for
handyman services that it paid the contract company. Id. The Circuit rejected this argument
because defendant had no control over how much the contracting company deducted for itself
and defendant never paid plaintiff directly. Also, defendant never negotiated plaintiff’s rates or
vary her rates. Id.
Similarly, AWG set a rate with CMKA for the Asset Protection Agents here. And there
are no facts in the summary judgment record to establish that AWG decided how much CMKA

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paid the Asset Protection Agents. Also, there are no facts showing that AWG negotiated
plaintiff’s hourly rate or that his hourly rate varied from other Asset Protection Agents.
The court already has determined that the summary judgment facts do not establish that
AWG had sufficient control of plaintiff’s hours to create a joint-employer relationship. See
supra, Part II.C.1.b. And so, the court concludes that plaintiff has failed to show a genuine
dispute about whether AWG controlled his compensation, benefits, and hours.
e.

Employee Records

Next, AWG contends that there is no joint-employer relationship because it did not
maintain employee records for plaintiff. Employee records include “payroll, insurance, taxes,
and the like.” Knitter, 758 F.3d at 1226. The uncontroverted facts establish that the Agreement
required CMKA to pay all required taxes. Indeed, plaintiff’s tax forms came from CMKA. And
plaintiff submitted federal I-9 paperwork to CMKA. Plaintiff also signed direct deposit
paperwork with CMKA.
Plaintiff notes that AWG made him complete daily activity reports and daily shift
summaries. Because these documents include the times that the shift began and ended, plaintiff
argues that they can be a type of time card. Although they might have enabled AWG to prepare
a time card, no fact in the record suggests that anyone used them for that purpose. Plaintiff also
notes that AWG tracked his badge swipes. But he fails to argue how badge swipes amount to
payroll, insurance, or taxes.
The court thus concludes that plaintiff has failed to establish any facts from which a
reasonable jury could find that AWG maintained employee records for plaintiff.

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f.

Conclusion

In sum, “taking the factors together,” the court concludes that no reasonable jury could
find that AWG was plaintiff’s employer. Knitter, 758 F.3d at 1231. Plaintiff failed to show a
genuine dispute whether AWG could hire him or terminate his employment—the most important
factor. Similarly, there is no genuine dispute whether AWG controlled plaintiff’s compensation,
benefits, hours, or employee records. While plaintiff has adduced some admissible evidence that
AWG promulgated rules and supervised plaintiff, they are not sufficient under the governing
case law. AWG’s level of control over these items is not sufficient for a reasonable jury to
conclude under all the factors that AWG was plaintiff’s joint employer. See id. (affirming
summary judgment against plaintiff because defendant’s authority to supervise and enforce rules
were not a sufficient basis for a reasonable jury to find that defendant was plaintiff’s joint
employer). For these reasons, AWG is entitled to summary judgment against both of plaintiff’s
claims.
2.

Plaintiff is a Disabled Person under the ADA

CMKA does not dispute that plaintiff was its employee. But it argues that plaintiff
cannot establish a prima facie case of ADA discrimination or retaliation. For a discrimination
claim, plaintiff must first show that he is a disabled person under the ADA. Adair, 823 F.3d at
1304. Plaintiff asks for partial summary judgment in his favor on this first element.
In 2008, Congress passed the ADA “with the stated goal of ensuring that [t]he definition
of disability . . . be construed in favor of broad coverage.” Roecker v. Brennan, No. 15-7201DDC-JPO, 2017 WL 445504, at *7 (D. Kan. Feb. 2, 2017) (quoting Adair, 823 F.3d at 1305).
To achieve this goal, Congress amended the definition of “disability.” Id. (citing Adair, 823 F.3d
at 1305). Now, “[t]he term ‘disability’ means, with respect to an individual—(A) a physical
or mental impairment that substantially limits one or more major life activities of such
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individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment . . . .” 42 U.S.C. § 12102(1).
To establish an ADA disability under subsection (A), “a plaintiff must articulate with
precision both [his] impairment and the major life activity it substantially limited.” Johnson v.
Weld Cty., Colo., 594 F.3d 1202, 1218 (10th Cir. 2010) (internal quotation marks and citation
omitted). An impairment can be “[a]ny physiological disorder or condition . . . affecting one or
more body systems, such as neurological, musculoskeletal, [or] special sense organs . . . .” 29
C.F.R. § 1630.2(h)(1).
Here, CMKA does not dispute that plaintiff has a seizure disorder. Nor does it dispute
that his disorder is an impairment. So the issue of disability turns on whether plaintiff’s seizure
disorder is substantially limiting. Because plaintiff’s seizure disorder is an episodic condition,
the court must determine whether it is substantially limiting while plaintiff is having a seizure.
See 42 U.S.C. § 12102(4)(D) (“An impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active.”). The court makes this
determination by analyzing the plaintiff’s impairment at the time of the employment decision.
See Cisneros v. Wilson, 226 F.3d 1113, 1129 (10th Cir. 2000) (“The determination as to whether
an individual is a ‘qualified individual with a disability’ must be made as of the time of the
employment decision.” (citation omitted)), overruled on other grounds by Bd. of Trs. of Univ. of
Ala. v. Garrett, 531 U.S. 356 (2001).
“An impairment is substantially limiting when it renders an individual either unable or
significantly restricted in [his] ability to perform a major life activity compared to the average
person in the general population.” Id. (internal quotation marks and citation omitted). “[M]ajor
life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing,

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hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
Here, plaintiff contends that his seizure disorder substantially limits his ability to perform
manual tasks, concentrate, and communicate. Indeed, the uncontroverted facts show that
plaintiff experiences both tonic-clonic and complex partial seizures. During a tonic-clonic
seizure, he loses consciousness. And while plaintiff is experiencing a complex partial seizure, he
has “difficult doing anything purposefully.” Doc. 176-1 at 10 (Seeley Dep. 135:1–4).
Specifically, during these seizures, plaintiff is unable to perform manual tasks, his ability to
concentrate is limited, and his ability communicate is limited substantially.
CMKA argues that Dr. Seeley and Dr. Kaplan’s opinions about plaintiff’s ability to
perform manual tasks, concentrate, and communicate are conclusory statements, and “[n]one of
the evidence specifies the actual major life activities that Plaintiff is unable to perform.” Doc.
194 at 16. This is simply wrong. At a minimum, the facts in the summary judgment record
establish that during a seizure plaintiff is limited in his ability to concentrate and communicate—
two major life activities identified by § 12102(2)(A). The facts also establish that plaintiff is
unable to perform manual tasks—a major life activity—during a seizure. The court agrees with
CMKA’s argument that Dr. Seeley and Dr. Kaplan’s opinions on this major life activity are
conclusory. And plaintiff shows no facts in the record establishing which manual tasks he is
unable to perform. But even assuming plaintiff has failed to show that he is unable to perform
manual tasks, it is uncontroverted that his ability to concentrate and communicate is limited
during a seizure.
CMKA also argues that the frequency and duration of plaintiff’s seizures suggest that
they do not substantially limit his major life activities. The frequency, however, does not affect

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the court’s analysis because the court only analyzes how much the impairment limits plaintiff
while it is active. See 42 U.S.C. § 12102(4)(D) (“An impairment that is episodic or in remission
is a disability if it would substantially limit a major life activity when active.”). While the
summary judgment record shows that most of plaintiff’s seizures are small, and last less than “a
couple minutes,” the quality of plaintiff’s mental activity is impaired during that period. And
sometimes he has tonic-clonic seizures that cause him to lose consciousness totally. During
these periods, whether plaintiff’s seizure is a small one or he loses consciousness, the
uncontroverted facts establish that plaintiff’s ability to concentrate or communicate are
substantially limited. And so, the court finds that CMKA has failed to establish a genuine issue
of material fact whether plaintiff’s seizure disorder is a disability under the ADA.
For this reason, the court grants partial summary judgment in plaintiff’s favor on the
question whether he is a disabled person under the ADA.
3.

A Genuine Dispute Exists Whether Plaintiff was a Qualified
Individual

To establish a prima facie case of discrimination, plaintiff also must show that “he is
qualified, with or without reasonable accommodation by the employer, to perform the essential
functions of the job,” and also, that “he was discriminated against because of his disability.”
Adair, 823 F.3d at 1304. CMKA argues that it is entitled to summary judgment on plaintiff’s
discrimination case because plaintiff could not perform the essential functions of his jobs with
AWG, so he was not a qualified individual.
To determine whether plaintiff is a qualified individual, the court engages in a two-part
analysis. Adair, 823 F.3d at 1307 (citing Hawkins, 778 F.3d at 887). First, the court inquires
“whether the plaintiff can perform the essential functions of the job, i.e., functions that bear more
than a marginal relationship to the job at issue.” Id. (citing Hawkins, 778 F.3d at 887). If
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plaintiff is unable to perform the essential functions of the job, the court then must determine
“whether any reasonable accommodation by the employer would enable him to perform those
functions.” Id. at 887–88 (citing Hawkins, 778 F.3d at 887).
The court begins by addressing the essential functions of the Desk Officer and
EMT/Patrol Officer positions. Under the ADA, “consideration shall be given to the employer’s
judgment as to what functions of a job are essential, and if an employer has prepared a written
description before advertising or interviewing applicants for the job, this description shall be
considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). Essential
functions are “the fundamental job duties of the employment position.” 29 C.F.R. §
1630.2(n)(1). A function may be essential because “the reason the position exists is to perform
that function,” or because of “the limited number of employees available among whom the
performance of that job function can be distributed . . . .” Id. § 1630.2(n)(2). Our Circuit has
recognized that courts must give “deference to an employer’s judgment concerning essential
functions.” Hawkins, 778 F.3d at 884–85 (first citing Tate v. Farmland Indus.,
Inc., 268 F.3d 989, 993 (10th Cir. 2001) (noting that the essential function “inquiry is not
intended to second guess the employer”); then citing Davidson v. Am. Online, Inc.,
337 F.3d 1179, 1191 (10th Cir. 2003) (explaining that some deference is due because
“[d]etermining whether a particular function is essential is a factual inquiry”)).
Here, CMKA posted the job vacancy on Craigslist. The summary judgment facts show
that this is the only job description plaintiff ever saw for the position. The description described
the experience and skills required by the job. The advertised position required a certified and
licensed EMT who was reliable, punctual, trustworthy, and customer-service oriented. And the
position required good oral and written communication skills, basic computer operation skills,

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professional representation of the company, good physical condition, and a neat and clean
appearance. Plaintiff argues that the court should rely on this job description to determine the
essential functions of plaintiff’s job.
CMKA disagrees in part, contending that driving, patrolling on foot, working alone, and
providing EMT services also were essential functions of the EMT/Patrol Officer position. And
CMKA contends that working alone and patrolling on foot were essential functions of the Desk
Officer position. CMKA bases its argument on AWG’s policy allowing individual departments
and their hiring managers to identify the essential functions of a position. AWG did not require
each department to list the essential functions of each job. Instead, Mr. Burke—AWG’s Senior
Manager for Corporate Security—identified the essential functions of the EMT/Patrol Officer
and Desk Officer positions during his deposition.
Mr. Burke identified the essential functions of the AWG EMT/Patrol Officer position as
conducting patrols (by vehicle and on foot) of the entire AWG facility and handling medical
calls at any of the facilities. The area for patrol included AWG’s parking lots, the “DSG
building,” and AWG’s on-site warehouse. Mr. Burke also identified other essential functions as:
performing drug screens; handling post-accident drug and alcohol screens; assisting the Desk
Officer with giving breaks (requiring cross-training on Desk Officer duties); checking fire
extinguishers in the corporate building; assisting with conducting preemployment backgrounds;
monitoring security cameras; accessing control; checking emergency lights and doors;
responding to alarms; and performing floor and door checks.
No facts in the summary judgment record indicate that EMT/Patrol officers worked
alone, much less, that working alone was an essential function of the position. So the court does
not consider whether that is an essential function on summary judgment. Instead, the court must

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consider whether driving, patrolling on foot, and providing EMT services are essential functions
of the position plaintiff held.
CMKA’s job posting does not include these functions, but the court nonetheless gives
deference to AWG’s judgment about the job’s essential functions. Here, the court need not rely
heavily on deference to AWG because the job title alone suggests that the position exists to
perform the functions of patrolling and providing EMT services. See 29 C.F.R. § 1630.2(n)(2)
(“A job function may be essential because the reason the position exists is to perform that
function . . . .”). Plaintiff makes a conclusory statement that CMKA has failed to produce
uncontroverted evidence showing that these are the essential functions of the EMT/Patrol Officer
position. But he never argues, specifically, that patrolling and providing EMT services are not
essential functions of this position.
CMKA argues that driving also was an essential function of the job. But the summary
judgment record contains evidence suggesting that driving was a means of performing essential
functions and not, in itself, an essential function. According to Mr. Burke, AWG requires its
EMT/Patrol Officer to drive motor vehicles. The AWG warehouse facility is a million square
feet occupying more than 40 acres of land. AWG requires EMT/Patrol Officers to patrol the
entire facility. Also, EMT/Patrol Officers only can access another facility that they must patrol
by driving on public roads. Finally, EMT/Patrol Officers may need to take other employees to a
medical clinic. That task requires them to drive on public roads. Mr. Harper believed the only
purpose for the EMT driving a motor vehicle is to respond to a medical call as quickly as
possible.
Testimony suggests that both patrolling and providing EMT services are the true
purposes for driving. The “fundamental job duties” of the EMT/Patrol Officer position are

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patrolling and providing EMT services. See 29 C.F.R. § 1630.2(n)(1). But it is properly
controverted whether driving is as well. The summary judgment record suggests that driving is
merely a means of accomplishing the essential functions. So although AWG required its
EMT/Patrol Officers to drive, it is controverted whether driving was an essential function.
The court concludes that no genuine issue of material fact exists whether patrolling and
providing EMT services were essential functions of the EMT/Patrol Officer. But a genuine issue
remains whether driving was an essential function. For this reason, the court cannot determine,
as a matter of law, that plaintiff was not qualified to perform the essential functions of the
EMT/Patrol Officer position.
Also, the court cannot determine, as a matter of law, that plaintiff was not qualified to
perform the essential functions of the Desk Officer position. CMKA contends that plaintiff
could not perform two essential functions of the job—working alone and conducting foot patrols.
Plaintiff disputes that working alone is an essential function. Indeed, AWG never identified
working alone as an essential function. AWG’s Mr. Burke listed the following duties as
essential functions: sitting at the front desk of AWG’s corporate office; answering phones;
transferring calls to the proper divisions after hours; monitoring security cameras; accessing
control; conducting preemployment background screens; and conducting floor and door checks.
But the summary judgment record also suggests that night shift Desk Officers were in the
building alone with two IT employees—a fact that strengthens CMKA’s argument.
But the court cannot weigh the competing evidence. Instead, it must view the facts in the
light most favorable to plaintiff—the party opposing summary judgment. Although the Desk
Officers on the night shift likely worked alone, the day shift did not. So, it is controverted
whether working alone was an essential function of the Desk Officer position. It also is

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controverted whether conducting foot patrols was an essential function. Mr. Burke identified
conducting floor and door checks as an essential function. He described these checks as a patrol
to ensure everything was in order and that all the doors were locked. But Desk Officers on the
day shift during the work week did not have to conduct these checks. So while it seems more
likely that foot patrols were an essential function, the current record does not allow the court to
decide that question of fact as an undisputed one.
Even if patrolling, driving, and providing EMT services were essential functions of the
EMT/Patrol Officer position, and working alone and conducting foot patrols were essential
functions of the Desk Officer position, a reasonable jury could find that CMKA could have
accommodated plaintiff reasonably and thus allowed him to perform the essential functions of
the Desk Officer position. The ADA provides that a reasonable accommodation may include:
“job restructuring, part-time or modified work schedules, reassignment to a vacant position,
acquisition or modification of equipment or devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of qualified readers or interpreters, and
other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B). But,
an employer is not obligated “to create a position out of wholecloth to accommodate the
individual in question.” Hawkins, 778 F.3d at 884 (citations omitted).
Here, accommodating plaintiff’s disability would not have required CMKA “to create a
position out of wholecloth.” Instead, a reasonable jury could find that CMKA could have
accommodated plaintiff reasonably by assigning him just to Desk Officer shifts.
The parties organize their arguments around two positions—the EMT/Patrol and Desk
Officers. This is a reasonable approach because CMKA hired plaintiff as an Asset Protection
Agent to fill those positions. But the job duties of an Asset Protection Agent differed depending

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on the needs of the customer and the job site. An Asset Protection Agent assigned to AWG
generally worked in the Guard Shack, worked at the front desk, performed EMT duties, and
performed patrol duties.
Although those were the general duties of an Asset Protection Agent assigned to AWG,
AWG originally entered into the Agreement with CMKA to provide security officers for the
Guard Shack. But, plaintiff never worked in the Guard Shank. Indeed, AWG later outsourced
those duties to another provider. And in March 2014, CMKA began providing Asset Protection
Agents to cover some of the shifts for Desk Officer and, to a limited extent, EMT/Patrol
Officers.
Initially, Asset Protection Agents covered the Desk Officer position for 88 hours each
week. They covered the EMT/Patrol Officer position for 56 hours each week. Around June of
2014, AWG reduced the number of hours it needed from CMKA’s Asset Protection Agents for
the EMT/Patrol Officer job from 56 hours to 16 hours per week. This reduction resulted from
AWG designating Ms. Morlan, an AWG employee, to work 40 hours per week as an EMT/Patrol
Officer. AWG then needed someone to backfill Ms. Morlan’s desk job.
A reasonable jury could find that AWG’s adjustments made the duties of an Asset
Protection Agent more flexible. So CMKA could have assigned plaintiff to work only Desk
Officer shifts thereby accommodating plaintiff’s apparent inability to perform the essential
functions as an EMT/Patrol Officer. Indeed, CMKA had taken this step shortly after plaintiff’s
June 25, 2014 seizure. So, such an adjustment could constitute a reasonable accommodation.
CMKA argues that plaintiff also was unable to perform the essential functions of the
Desk Officer position, even with an accommodation. But on this record, the court cannot
determine the essential functions of this job as a matter of law. So to address accommodations at

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summary judgment, the court assumes working alone and conducting foot patrols were essential
functions of a Desk Officer and plaintiff was unable to perform those functions without an
accommodation.
Plaintiff contends that moving him to the day shift would have accommodated his
apparent inability to work alone or conduct foot patrols. AWG makes a conclusory statement in
its statement of purportedly undisputed facts that an AWG employee worked the entire day shift
and had different duties. CMKA argues that this fact means plaintiff could not have worked this
shift. But AWG’s conclusory statement and CMKA’s argument fail to establish uncontroverted
facts that could have assigned plaintiff to a shift during daytime hours. On the summary
judgment record, a reasonable jury could find that, after an interactive process, CMKA, with
AWG’s assistance, could have made this accommodation. Smith v. Midland Brake, Inc., a Div.
of Echlin, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999) (“The interactive process is typically an
essential component of the process by which a reasonable accommodation can be determined.
The interactive process includes good-faith communications between the employer and
employee.” (footnote omitted)).21
Also, a reasonable jury could find that CMKA could have accommodated plaintiff by
acquiring equipment, thus allowing him to perform the essential functions of a Desk Officer
during an overnight shift. Plaintiff suggests a camera and/or panic button mounted at the front
desk. A reasonable jury could find that this equipment could have allowed the IT employees to
monitor plaintiff while he was working at the front desk. Also, Desk Officers were supposed to
conduct foot patrols when an IT employee relieved them. The IT employee stationed at the front

21

When analyzing another argument, the court reviewed AWG’s Assignment Schedule (Doc. 198-14).
This schedule suggests that CMKA assigned plaintiff to some daytime Desk Officer shifts after his June
25, 2014 seizure. For this reason, a reasonable jury could find that plaintiff’s continued assignment to
daytime shifts was a reasonable accommodation.

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desk while plaintiff conducted foot patrols could have monitored his movements on closedcircuit televisions. These options would have accommodated plaintiff’s inability to work alone
and conduct foot patrols.
CMKA contends that such options do not eliminate the risk to plaintiff. “An individual is
not qualified for a job if there is a genuine, substantial risk that he or she could be injured or
injure others, and the employer cannot modify the job to eliminate the risk.” Spradley v. Custom
Campers, Inc., 68 F. Supp. 2d 1225, 1233 (D. Kan. 1999). In Spradley, our court found that an
employee with a seizure disorder was not qualified because, in part, when the employee had a
seizure at work, he was near an industrial trash compactor that could have injured or killed him if
he had fallen in it. Id.
CMKA analogizes this holding to the “direct threat” affirmative defense available to
employers under the ADA. 42 U.S.C. § 12113(b); see 29 C.F.R. § 1630.2(r) (“Direct Threat
means a significant risk of substantial harm to the health or safety of the individual or others that
cannot be eliminated or reduced by reasonable accommodation.”). Here, CMKA argues, the
burden is on plaintiff to demonstrate that he can perform the essential job functions without
endangering himself. See Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007) (“[W]here the
essential job duties necessarily implicate the safety of others, then the burden may be on the
plaintiff to show that she can perform those functions without endangering others.” (citations
omitted)). Although the “direct threat” affirmative defense does not apply here, CMKA argues
that the factors22 it considers demonstrate that plaintiff cannot meet this burden. The court

22

To determine whether an individual would pose a direct threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and

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declines to analyze the factors and, instead, focuses on the term’s definition: “a significant risk
of substantial harm to the health or safety of the individual or others that cannot be eliminated or
reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r) (emphasis added).
CMKA argues that the risk of substantial harm to plaintiff cannot be eliminated, so he is
not qualified. The court disagrees. The definition of this term does not require the risk’s
elimination. It merely requires a reduction in the risk. And the proposed equipment—a camera
and/or panic button—could significantly reduce the risk to plaintiff. CMKA expresses concern
about plaintiff’s risk of choking, aspirating, and dying of Sudden Death of Epilepsy (“SUDEP”).
Those are risks that plaintiff would face if he had a seizure anywhere while alone. But cameras
and panic buttons could have lowered plaintiff’s risk of choking, aspirating, and SUDEP to a
point that a reasonable jury could find that they no longer presented a direct threat to him.
Spradley instructs the court to view potential risks of harm to plaintiff and others in the
workplace. In Spradley, an industrial trash compactor posed a threat to that plaintiff that he
would not face in everyday life. Choking, aspiration, and dying of SUDEP are all risks plaintiff
would face at home while alone. But with the suggested devices, IT employees could respond
and assist. Their ability to respond would lower the risk of direct threat to plaintiff. In practice,
plaintiff, with these accommodations, would be at a lower risk of choking, aspirating, or dying of
SUDEP while at work than he would be at home alone. For these reasons, a reasonable jury
could find that the suggested accommodations could have reduced the direct threat to plaintiff’s
health. By reducing that threat, the jury also could find that plaintiff was otherwise qualified.

(4) The imminence of the potential harm.
29 C.F.R. § 1630.2

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The court thus concludes there is a genuine issue whether plaintiff was qualified to perform the
Asset Protection Agent position with reasonable accommodation.
4.

A Genuine Dispute Exists Whether Plaintiff Suffered Discrimination
because of His Disability

The last element of the prima facie case of ADA discrimination is discrimination because
of a disability. “[T]o demonstrate ‘discrimination,’ a plaintiff generally must show that he has
suffered an ‘adverse employment action because of the disability.’” E.E.O.C. v. C.R. Eng., Inc.,
644 F.3d 1028, 1038 (10th Cir. 2011) (quoting Mathews v. Denver Post, 263 F.3d 1164, 1167
(10th Cir. 2001)) (other citations omitted). An adverse employment action “constitutes a
significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change in
benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). A court determines
whether an employment action is adverse by using a “case-by-case approach, examining the
unique factors relevant to the situation at hand.” McGowan v. City of Eufala, 472 F.3d 736, 742
(10th Cir. 2006) (citation omitted).
Plaintiff alleges that he was discriminated against in four ways. They are: (1) his
removal from EMT training; (2) his removal from AWG; (3) CMKA’s failure to reassign him;
and (4) termination of his employment by CMKA.
a.

Removal from EMT Training

A reasonable jury could find that plaintiff’s removal from EMT training was an adverse
employment action. Although removal from EMT training was not a hiring or firing, it was
more than a “petty slight[], minor annoyance[], and simple lack of good manners.” Roecker,
2017 WL 445504 at *11.

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The court must determine if “a reasonable employee would have found [the action]
materially adverse” while also “examining the unique factors relevant to the situation at hand.”
McGowan, 472 F.3d at 742. Here, it is uncontroverted that plaintiff applied for, and was hired
for a position using EMT skills. It also is uncontroverted that plaintiff wanted to use his EMT
skills. When AWG postponed his training, he asked CMKA about other positions that would
allow him to use his EMT skills. He voiced his desire to use those skills several times to
CMKA. A reasonable jury could find these were the actions that a reasonable employee who
applied for an EMT position would undertake.
Although both Desk Officer and EMT/Patrol Officer duties were contained under the
umbrella of Asset Protection Agent duties, the duties of the two positions were significantly
different. Plaintiff started his assignment to AWG by performing only Desk Officer duties.
Then, on June 25, 2014, his duties were going to change to include EMT/Patrol Officer duties.
But following his seizure that same day, he once again performed Desk Officer duties only. This
is similar to a reassignment with significantly different responsibilities, which the Supreme Court
has recognized as an adverse employment action. See Burlington Indus., Inc., 524 U.S. at 761.
A reasonable jury could find that plaintiff’s removal from EMT training was an adverse
employment action. And it is uncontroverted that CMKA removed plaintiff from EMT training
because of his seizure disorder. Accordingly, a genuine issue of material fact exists whether
plaintiff suffered an adverse employment action because of his disability.
b.

Removal from AWG

CMKA does not dispute that plaintiff’s removal from AWG was adverse. Instead, it
argues that there is insufficient temporal proximity to plaintiff’s seizure to support a reasonable
finding that his removal from AWG resulted from his seizure disorder. See Anderson v. Coors

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Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (finding temporal proximity to be a key
element of showing causation). Our Circuit has recognized that “unless the [adverse action]
is very closely connected in time to the protected activity, the plaintiff must rely on additional
evidence beyond temporal proximity to establish causation.” Id. (emphasis in original). The
Tenth Circuit also has held that a one and one-half month period may, by itself, establish
causation. Id. But, a three-month period, standing alone, is insufficient to establish causation.
Id. With an interval between one and one-half months and three months, “the adverse action’s
timing ceases to be sufficient, standing alone, to establish the requisite causal inference is less
than pellucid.” Conroy v. Vilsack, 707 F.3d 1163, 1181 (10th Cir. 2013)
Here, plaintiff’s seizure occurred on June 25, 2014. CMKA removed him from AWG on
August 21, 2014—about two months later. So plaintiff likely could not rely solely on temporal
proximity. But plaintiff doesn’t rely on just timing. Instead, he argues that Mr. Harper’s August
19, 2014 email to Erin Neuberger at Cobalt Astra provides some additional evidence of
discrimination. Plaintiff contends that Mr. Harper’s sentence in that message—“I am letting
[plaintiff] go Friday, this is the guy who had the seizure and his doctor cleared him . . .”—
suggests a causal link between his seizure disorder and his removal from AWG. Doc. 180-48
(emphasis added).
The parties disagree about the import of Mr. Harper’s sentence. CMKA argues that Mr.
Harper used this phrase to describe plaintiff in a way that would jog Ms. Neuberger’s memory.
Plaintiff argues that this sentence reveals an underlying narrative that links plaintiff’s removal to
his disability. The court concludes that a reasonable jury could accredit either interpretation. In
sum, this evidence combined with an intermediate level of temporal proximity precludes
summary judgment on this issue.

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c.

CMKA’s Failure to Reassign Plaintiff

CMKA argues that its failure to reassign plaintiff is not an adverse action because it hired
plaintiff for an assignment at AWG. CMKA notes that plaintiff was an on-call employee so
CMKA could provide him with assignments only as they were available. And because the
opening at Aberdeen never materialized, no alternative assignment was available for plaintiff.
CMKA’s argument misses the mark. An adverse employment action “constitutes a
significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change in
benefits.” Burlington Indus., Inc., 524 U.S. at 761. By failing to reassign plaintiff, CMKA
stopped giving plaintiff hours. This “caus[ed] a significant change in benefits” that was like
CMKA firing plaintiff. Id. A reasonable jury could find that CMKA’s failure to reassign
plaintiff was an adverse employment action. Moreover, a reasonable jury also could find that
CMKA’s failure to reassign plaintiff was causally connected to his disability for two reasons.
First, CMKA’s failure to reassign plaintiff occurred after Mr. Harper’s August 19, 2014 email
that provided some evidence of discrimination, as discussed above. Two, this adverse action had
a sufficient temporal proximity to plaintiff’s seizure. See Anderson, 181 F.3d at 1179. For these
reasons, a genuine dispute exists whether CMKA’s failure to reassign plaintiff was an adverse
action that was causally connected to his disability.
d.

Alleged Termination from CMKA

Finally, CMKA argues that it did not terminate plaintiff so there was no adverse action.
There is no dispute that termination is an adverse action—the only question is whether CMKA
terminated plaintiff’s employment.

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The facts circulating around plaintiff’s departure from CMKA are murky. Ms. Threadgill
called plaintiff about bringing in his uniforms and picking up his final check. During the call
with plaintiff, Mr. Harper interrupted her, so she retracted her request and instead, relayed a
message from Mr. Harper that he still was trying to find plaintiff work. Then, Mr. Harper
contacted plaintiff personally to tell him he still was considered a CMKA employee, they just
didn’t have any current assignments to give him.
Later, plaintiff brought his uniforms to Ms. Threadgill and picked up his last check. She
didn’t ask him why he did so, and plaintiff didn’t volunteer the information. The summary
judgment record contains facts suggesting that plaintiff assumed he was fired. And likewise, it
contains facts suggesting that Mr. Harper and Ms. Threadgill assumed plaintiff had quit. But
neither side of this exchange confirmed the other side’s intentions.
When viewing this sequence of events in the light most favorable to plaintiff, the court
finds a genuine issue of material fact exists whether CMKA terminated plaintiff. Although Ms.
Threadgill retracted her request for plaintiff’s uniforms, Mr. Harper later told him they didn’t
have any assignments for him. And when plaintiff brought his uniforms to Ms. Threadgill, she
didn’t reiterate that there was no need for plaintiff to turn in his uniforms or pick up his last
check. From this series of events, a reasonable jury could find that CMKA terminated plaintiff’s
employment.
Neither party offers an explicit argument whether the alleged termination was linked
causally to plaintiff’s seizure disorder. But on this record, the court concludes that a reasonable
jury could find that it was causally linked to plaintiff’s disability for reasons already explained.23

23

The facts in the summary judgment record do not establish when Ms. Threadgill called plaintiff or
when he turned in his uniforms. The lapse of time after August 21, 2014, is described as “several weeks,”
so the court infers that less than a month passed between his removal from AWG and his alleged

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In sum, plaintiff has established a genuine issue of fact about each element of the prima
facie case of ADA discrimination. This conclusion shifts the burden to CMKA. It must show
legitimate non-discriminatory reasons for the adverse employment actions. Dewitt, 845 F.3d at
1307. The next section addresses this step of the analysis.
5.

CMKA Shows Legitimate Non-Discriminatory Reasons for the
Adverse Employment Actions

To rebut the presumption of discrimination raised by plaintiff’s prima facie case, CMKA
must articulate a legitimate non-discriminatory reason for the adverse employment actions.
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). CMKA “need not persuade
the court that it was actually motivated by the proffered reasons . . . . It is sufficient if [CMKA’s]
evidence raises a genuine issue of fact as to whether it discriminated against [] plaintiff.” Id.
“To accomplish this, [CMKA] must clearly set forth, through the introduction of admissible
evidence, the reasons for the [adverse action].” Id. CMKA’s explanation of its legitimate
reasons must be “clear and reasonably specific” and thereby present plaintiff with “a full and fair
opportunity to demonstrate pretext.” Id. at 255–56, 258.
Plaintiff concedes that CMKA has articulated legitimate non-discriminatory reasons for
his removal from EMT training, his removal from AWG, and for CMKA’s failure to reassign
him. But, he disputes that CMKA has produced a clear and reasonably specific reason for his
alleged termination from CMKA.
In response, CMKA asserts that it “had more than enough legitimate reasons to make
such a decision—Plaintiff’s performance problems were serious enough to justify not only his
removal from the AWG site (the position for which he was specifically hired), but also for his

termination. This inference makes the temporal proximity less than three months and within the Tenth
Circuit’s limit for an inference of temporal proximity. See Anderson, 181 F.3d at 1179.

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termination from employment at CMKA.” Doc. 180 at 68. CMKA also asserts: “Plaintiff was
removed from the AWG position because CMKA’s client, AWG, was unhappy with Plaintiff’s
performance and wanted Plaintiff removed due to legitimate and significant performance
reasons. Plaintiff had admitted performance problems throughout his employment with CMKA.
Plaintiff was removed due to performance problems.” Doc. 180 at 67 (citations omitted).
CMKA argues that “performance problems” are a legitimate non-discriminatory reason
for both plaintiff’s removal from AWG and his termination from CMKA. The court finds no
reason to treat “performance problems” as a clear and reasonably specific reason for plaintiff’s
removal from AWG but not his termination from CMKA. The court thus concludes that CMKA
has produced a legitimate non-discriminatory explanation for this adverse action.
Having concluded that CMKA articulated a legitimate, non-discriminatory reason for
each of the four adverse actions, the burden shifts back to plaintiff. He must now show there is a
genuine issue of material fact whether CMKA’s “proffered legitimate reason is genuine or
pretextual.” Dewitt, 845 F.3d at 1307. The next section addresses that issue.
6.

A Genuine Dispute Exists Whether CMKA’s Proffered Reasons were
Pretextual

“A plaintiff demonstrates pretext by showing either that a discriminatory reason more
likely motivated the employer or that the employer’s proffered explanation is unworthy of
credence.” Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007). “In
establishing pretext, an employee can show the employer’s proffered reason was so inconsistent,
implausible, incoherent, or contradictory that it is unworthy of belief.” Piercy v. Maketa, 480
F.3d 1192, 1200 (10th Cir. 2007). “Typically, a plaintiff may show pretext in one of three ways:
(1) with evidence that defendant’s stated reason for the adverse employment action was false; (2)
with evidence that the defendant acted contrary to a written company policy prescribing the
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action taken by the defendant under the circumstances; or (3) with evidence that he was treated
differently from other similarly-situated employees who violated work rules of comparable
seriousness.” Salguero v. City of Clovis, 366 F.3d 1168, 1176 (10th Cir. 2004) (internal
quotation marks, corrections, and citation omitted). But, “[e]vidence of pretext may also take a
variety of other forms,” so plaintiff is not “forced to pursue any particular means of
demonstrating that a defendant’s stated reasons are pretextual.” Swackhammer v. Sprint/United
Mgmt. Co., 493 F.3d 1160, 1168 (10th Cir. 2007) (internal quotation marks, corrections, and
citation omitted).
First, plaintiff never argues that the reasons given by CMKA for his removal from EMT
training were pretextual. So he has failed to raise a genuine dispute about that action, and the
court thus grants summary judgment against plaintiff’s ADA discrimination claim based on his
removal from EMT training.
Plaintiff’s arguments about CMKA’s reasons for removing him from AWG, failing to
reassign him, and terminating his employment remain. The court addresses them now. Plaintiff
argues that a reasonably jury could find CMKA’s articulated reasons for these actions are
pretextual for three reasons: (1) Mr. Harper’s stated reason for removing plaintiff from AWG
were false; (2) CMKA’s actions were contradictory because they tried to find plaintiff another
position; and (3) plaintiff was treated differently than other similarly-situated CMKA and AWG
employees. 24

24

The court does not address the portion of plaintiff’s argument relying on Document 198-15. Like
AWG’s objection to plaintiff’s use of Document 200-16 (CMKA Termination Report), see note 2 above,
CMKA objects to plaintiff’s use of Document 198-15 (the same Termination Report) to support a
purported summary judgment fact. Doc. 209 at 126–27. Again, plaintiff fails to cite to any deposition
transcript or affidavit purporting to make this report a part of the summary judgment record. See Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (“[Summary judgment facts must be identified
by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” (citing Thomas
v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992))). The court concludes that it

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First, it is uncontroverted that Mr. Harper provided plaintiff a false reason for his removal
from AWG. During a phone call on August 21, 2014, Mr. Harper told plaintiff that he was being
removed from the AWG assignment because the contract had changed. Mr. Harper also told
plaintiff that AWG was reducing the number of security personnel. CMKA concedes that this
reason was false. CMKA now asserts its real, nondiscriminatory reason for removing plaintiff
from AWG was his various performance issues culminating in plaintiff’s failure to conduct floor
checks properly. Mr. Harper explains that he gave plaintiff a false reason because he was trying
to be nice to him.
CMKA argues, first, that Mr. Harper believed plaintiff was going to continue to work at
CMKA so he was trying to be nice to him when he gave a softer reason for the end of his
assignment at AWG. Then, CMKA tried to explain Mr. Harper’s false reason as a poor choice of
words. Finally, employing elaborate wordsmithing, CMKA concludes that the reason Mr.
Harper gave plaintiff actually was true because AWG could request plaintiff’s removal under the
Agreement. So, if Mr. Harper had said that plaintiff was removed because “AWG had requested
changes pursuant to their contract,” he would have provided a true reason, not a false one. Doc.
209 at 149 (emphasis in original).
None of these arguments persuade the court to grant summary judgment on the pretext
issue. The summary judgment record contains evidence that Mr. Harper did not hesitate to
reprimand plaintiff for lesser performance shortcomings—e.g., dress code issues. So a jury
rationally could reject CMKA’s explanation for Mr. Harper’s untrue statement to plaintiff on
August 21, 2014.

cannot properly consider Document 198-15 because plaintiff has failed to make it part of the summary
judgment record.

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In sum, because CMKA has given “inconsistent” and “contradictory” reasons for ending
plaintiff’s assignment to AWG, Piercy, 480 F.3d at 1200, CMKA’s “proffered explanation” is
not “unworthy of credence.” Zamora, 478 F.3d at 1166. Likewise, any reasons CMKA gave for
adverse actions after plaintiff’s removal from AWG—failing to reassign plaintiff and CMKA’s
alleged termination of plaintiff’s employment—are tainted and also unworthy of credence.
Namely, CMKA told plaintiff there were no available positions where it could reassign him and
this absence of available positions caused plaintiff’s alleged termination from employment with
CMKA. The genuine dispute about pretext resulting from Mr. Harper’s contradictory reason for
removing plaintiff from assignment to AWG overshadows these non-discriminatory explanations
as well. So a reasonable jury could conclude they, too, were pretextual.
Plaintiff thus has discharged his summary judgment burden. The court concludes that a
genuine issue of material fact exists and it thus denies CMKA’s motion for summary judgment
against plaintiff’s discrimination claim under the ADA.25
7.

A Reasonable Jury Could Conclude that CMKA Retaliated Against
Plaintiff

This leaves plaintiff’s retaliation claim. To establish a prima facie case of retaliation,
plaintiff must show: “(1) he engaged in a protected activity; (2) he was subjected to an adverse
employment action subsequent to or contemporaneous with the protected activity; and (3) there
was a causal connection between the protected activity and the adverse employment action.”
Foster, 830 F.3d at 1187 (internal quotation marks, correction, and citation omitted).
A plaintiff may engage in protected activity in several ways. One way is to challenge an
employment practice that he reasonably believed was unlawful. See Hinds v. Sprint/United

25

Given its conclusion based on CMKA’s inconsistent statements, the court does not reach plaintiff’s
arguments about disparate treatment among similarly situated employees.

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Mgmt. Co., 523 F.3d 1187, 1201 (10th Cir. 2008); see also Yazdian v. ConMed Endoscopic
Techs., Inc., 793 F.3d 634, 645 (6th Cir. 2015). No magic words are required, but to qualify as
such a challenge, the employee must convey to the employer his concern that the employer has
engaged in an unlawful practice. Hinds, 523 F.3d at 1203. Another means to engage in
protected activity is to request an accommodation. Foster, 830 F.3d at 1187. Again, no magic
words are required, but the employee must make clear that he seeks assistance for his disability.
Id. at 1188.
Plaintiff contends that he both challenged an employment practice and requested an
accommodation on two different occasions. The first such challenge is plaintiff’s conversation
with Mr. Harper a few days after his June 25, 2014 seizure. Plaintiff asked, “I’m not going to
lose my job because of this?,” and “I’m not going to be impacted by this in anyway?” (plaintiff
explained that “this” referred to his medical condition). Doc. 198-4 at 12 (Crumpley Dep.
74:10–17). The second predicate challenge relies on an email exchange on August 21, 2014—
shortly after Mr. Harper removed plaintiff from AWG. Plaintiff asked Mr. Harper, “Just so
we’re clear, this has nothing to do with my medical history right?” Doc. 180-51 at 1.
The first exchange—“I’m not going to lose my job because of this?” and “I’m not going
to be impacted by this in anyway?”—cannot qualify as a challenge of an illegal employment
practice. As of June 25, no illegal practice existed for plaintiff to challenge. And if plaintiff is
trying to treat these statements as a preemptive challenge to employment practices he perceived
as possible, he provides no legal support for such a theory.
Likewise, no reasonable jury could find that plaintiff’s questions after his June 25 seizure
requested an accommodation. An employee must clearly request assistance for his disability to
qualify as a protected activity. Foster, 830 F.3d at 1188. A request is adequate if it is

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“sufficiently direct and specific, giving notice that [the employee] needs a special
accommodation.” Id. (quoting Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 23 (1st Cir.
2004)) (brackets in original) (other citation omitted). Plaintiff’s questions shortly after June 25
make no request and give no notice that plaintiff needed special accommodation. No reasonable
jury could find that plaintiff engaged in protected activity when he had asked these questions of
Mr. Harper.
Plaintiff also argues that his August 21, 2014 email was protected activity. The question
he asked then—“Just so we’re clear, this has nothing to do with my medical history right?”—
also does not make a request or give notice that plaintiff needed a special accommodation. It
cannot qualify as protected activity because it requests no accommodation.
But this question may have challenged an employment practice. The legal standard
requires no magic words. Instead, the employee merely must convey his concern that the
employer has engaged in an unlawful practice. Hinds, 523 F.3d at 1203. In Hinds, our Circuit
provided some insight into this standard. 523 F.3d at 1202–03. Analyzing whether several
emails were protected activity under the Age Discrimination in Employment Act, the Circuit
distinguished the emails based on whether they mentioned or alluded to age or age
discrimination. The Circuit summarily dismissed the claims based on emails that did not
mention or allude to age or age discrimination.
Here, plaintiff’s August 21, 2014 email makes the first cut because it mentions plaintiff’s
medical history—his disability. Also, a reasonable jury could read the question as expressing a
concern about disability discrimination.
But it does concern the court that plaintiff’s email asks a question. Some aspects of
Supreme Court authority imply that a question—if it really asks a question—can supply the

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predicate for a retaliation claim. On one hand, “[w]hen an employee communicates to [his]
employer a belief that the employer has engaged in . . . a form of employment discrimination,
that communication virtually always constitutes the employee’s opposition to the
activity.” Crawford v. Metro. Gov’t of Nashville and Davidson Cty., Tenn., 555 U.S. 271, 276
(2009) (internal quotation marks and citations omitted). The form of that communication “can
range from filing formal charges to voicing informal complaints to superiors.” Hertz v. Luzenac
Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) (citation omitted).
Yet other courts have concluded that a question that really is a question cannot qualify as
a “challenge” or “opposition” to an unlawful action. See Schoonover v. Schneider Nat. Carriers,
Inc., 492 F. Supp. 2d 1103, 1153–54 (S.D. Iowa 2007) (holding that employee’s inquiries about
whether her equipment and work assignments were based on her gender did not constitute
opposition to an unlawful employment practice and thus was not protected activity). In
Schoonover, the court granted summary judgment against plaintiff’s retaliation claim and
reasoned that an employee’s decision to “inquire belies any notion that she had already formed a
belief that an unlawful employment practice was occurring.” Id. at 1154 (emphasis in original).
As the summary judgment order explained, “[a] query is not an accusation, the act of asking is
distinct from the act of expostulating, and information gathering must precede a critique.” Id.
While the court agrees with the crux of Schoonover—a true inquiry could not provide the
requisite predicate for a retaliation claim—the record here, considered as a whole, makes the
issue inappropriate for summary judgment. While it is an exceedingly close call, the court rules
that a reasonable jury could find plaintiff’s explicit reference to his seizure disorder amounted to
a challenge to an employment practice he reasonably perceived as unlawful. If a jury accredited

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the view of plaintiff’s words, it would be a reasonable inference. And under the governing law,
it would qualify as protected activity.
That conclusion moves the analysis to the next step: Plaintiff must show he suffered an
adverse employment action after his protected activity. Foster, 830 F.3d at 1187. The court
already has determined that a reasonable jury could find that plaintiff suffered two adverse
actions following his August 21, 2014 email—CMKA’s failure to reassign him and CMKA’s
termination of his employment. So the court turns to the final element of plaintiff’s prima facie
case of ADA retaliation—“a causal connection between the protected activity and [these]
adverse employment action[s].” Id.
Like causal connection on an ADA discrimination claim, temporal proximity, alone, may
satisfy this final element of the prima facie case of retaliation. See Annett v. Univ. of Kansas,
371 F.3d 1233, 1240 (10th Cir. 2004) (first citing Ramirez v. Oklahoma Dep’t. of Mental
Health, 41 F.3d 584, 596 (10th Cir. 1994) (concluding that a one and one-half month period
between protected activity and adverse action may establish causation), overruled on other
grounds by Ellis v. University of Kansas Medical Center, 163 F.3d 1186, 1194–97 (10th Cir.
1998); then citing Anderson, 181 F.3d at 1179 (assuming that temporal proximity of two months
and one week is sufficient to support a prima facie case of retaliation)).
Here, the court is unable to discern the exact interval between plaintiff’s August 21, 2014
email asking—“Just so we’re clear, this has nothing to do with my medical history right?”—and
when plaintiff turned in his uniforms and pick up his final check (his alleged termination). The
only metric of time contained in the summary judgment facts is that “several weeks” elapsed
between that email and the phone call where Ms. Threadgill, at first, told plaintiff to turn in his
uniform and pick up his final check. Then, some period not reflected in the summary judgment

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record elapsed when Mr. Harper told plaintiff he didn’t have any assignments for him and
ultimately, plaintiff turned in his uniforms and retrieved his final check.
Despite this uncertainty, a reasonable jury could infer that the period at issue here is no
greater than the period allowed by Anderson—two months and one week—and likely within the
period allowed by Ramirez—one and one-half months. Here’s how the court reached that
conclusion.
Plaintiff sent the email to Mr. Harper on August 21, 2014. Six weeks and five days later,
on October 7, 2014, CMKA’s Mr. Smith sent an email expressing his opinion why plaintiff was
removed from AWG. Although it is unclear what prompted the email, a jury reasonably could
find that Mr. Smith was responding to an inquiry about plaintiff’s alleged termination from
CMKA. Mr. Smith starts with: “Did you get the story from Jeff [Harper] on this?” Doc. 65-11.
Then, he explains his opinion and ends by saying, “What’s next?” Id. The overall content of the
email suggests Mr. Smith was responding to an inquiry. In that case, Mr. Smith would have sent
the email after plaintiff’s alleged termination. And so, CMKA’s failure to reassign plaintiff and
plaintiff’s alleged termination from CMKA seem to have occurred before October 7—making
these adverse employment actions temporally proximate to plaintiff’s activity. Plaintiff thus has
adduced admissible evidence of a causal connection between his protected activity and the
adverse employment actions.
Plaintiff has established the capacity to present admissible evidence on every element of
his prima facie case of ADA retaliation. The court thus denies CMKA’s summary judgment
motion on this claim.

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8.

Plaintiff is not Entitled to Compensatory or Punitive Damages on His
ADA Retaliation Claim

The final issue CMKA raises is whether plaintiff is entitled to compensatory and punitive
damages on his ADA retaliation claim. In support of its argument that plaintiff cannot recover
such damages, CMKA relies on Boe v. AlliedSignal Inc., 131 F. Supp. 2d 1197 (D. Kan. 2001).
In Boe, our court conducted an in-depth analysis into this very issue. 131 F. Supp. 2d at 1202–
03. Judge VanBebber examined the four subchapters of the ADA to determine that § 12117
adopts the remedies in Title VII of the Civil Rights Act of 1964. After careful review of the
Civil Rights Act of 1964 and 1991, the court determined that the statutory language provided
compensatory and punitive damages for ADA discrimination claims but not for ADA retaliation
claims. The court concluded that plaintiff is “entitled only to equitable relief on his ADA
employment retaliation claim and is not entitled to compensatory or punitive damages.” Id. at
1203.
Since Boe, our court has addressed this issue twice more. See Umholtz v. Kansas, Dep’t
of Soc. & Rehab. Servs., 926 F. Supp. 2d 1222 (D. Kan. 2013), aff’d sub nom. Levy v. Kansas
Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164 (10th Cir. 2015); Sink v. Wal-Mart Stores, Inc.,
147 F. Supp. 2d 1085, 1100–01 (D. Kan. 2001). In both decisions, our court held that
compensatory and punitive damages are not available on ADA retaliation claims.
Umholtz noted that the Seventh and Ninth Circuits already had held the same. 926 F.
Supp. 2d at 1230 (citing Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1264–70 (9th Cir.
2009); Kramer v. Banc of America Securities, LLC, 355 F.3d 961, 964–66 (7th Cir. 2004) cert.
denied, 542 U.S. 932 (2004)). Also, the court acknowledged that the Tenth Circuit affirmed a
jury verdict where punitive damages were awarded on an ADA retaliation claim, but the Circuit
did not address the threshold question whether the law permitted a plaintiff to recover such
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damages, only whether the evidence supported such an award. Id. (citing E.E.O.C. v. Wal–Mart
Stores, Inc., 187 F.3d 1241, 1246 (10th Cir.1999)).
Plaintiff asserts that Wal-Mart Stores, Inc. is binding precedent on the court. Doc. 197 at
113. But as Umholtz acknowledged, the Circuit did not address the issue whether the law
permitted a plaintiff to recover such damages. Since Umholtz, no Circuit Court has addressed
this issue. Neither has our court.
In sum, the Seventh and Ninth Circuits and our court have held that compensatory and
punitive damages are not available on ADA retaliation claims. And our Circuit has not
addressed the issue squarely. Accordingly, the court concludes plaintiff is not entitled to
compensatory or punitive damages on his ADA retaliation claim.
III.

Conclusion
The court grants in part plaintiff’s Motion to Exclude Certain Opinion Testimony of Dr.

Kaplan and Dr. Seely and denies it in part. These neurologists properly may give testimony
based on their personal knowledge of the examination, diagnosis, and treatment of plaintiff. But
they may not opine about plaintiff’s employability, whether he can legally drive, or what he
should disclose to his employers.
The court grants defendant AWG summary judgment against all plaintiff’s claims
because no reasonable jury could find that AWG was plaintiff’s employer. The court also grants
plaintiff summary judgment on the issue whether his seizure disorder amounts to a disability
under the ADA.
Finally, the court grants CMKA summary judgment against plaintiff’s ADA
discrimination claim based on his removal from the EMT training program. But it denies
summary judgment against plaintiff’s ADA discrimination claim based on his removal from

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AWG, CMKA’s failure to reassign plaintiff, and its termination of his employment. The court
also denies CMKA summary judgment against plaintiff’s ADA retaliation claim.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Motion for
Partial Summary Judgment (Doc. 175) is granted.
IT IS FURTHER ORDERED THAT plaintiff’s Motion to Exclude Certain Opinion
Testimony of Dr. Jeffery Kaplan and Dr. Michael Seeley (Doc. 177) is granted in part and denied
in part.
IT IS FURTHER ORDERED THAT defendant CMKA’s Motion for Summary
Judgment (Doc. 179) is granted in part and denied in part.
IT IS FURTHER ORDERED THAT defendant AWG’s Motion for Summary
Judgment (Doc. 181) is granted.
IT IS SO ORDERED.
Dated this 23rd day of April, 2018, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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