Hull v. Arvest Bank Operations Inc
ORDER granting 52 Plaintiff's Motion for Partial Summary Judgment as set forth herein. Signed by Honorable Timothy D. DeGiusti on 6/27/17. (ml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
STEPHEN CHARLES HULL,
ARVEST BANK OPERATIONS, INC.,
d/b/a ARVEST BANK,
Case No. CIV-16-69-D
This matter comes before the Court on Plaintiff’s Motion for Partial Summary
Judgment [Doc. No. 52], filed pursuant to Fed. R. Civ. P. 56.1 Plaintiff Stephen Hull seeks
a summary determination in his favor of two discrete issues: 1) whether he is entitled to
protection as an individual with a “disability” as defined by the Americans with Disabilities
Amendment Act of 2008 (ADAAA), 42 U.S.C. § 12102; and 2) whether the affirmative
defense of failure to mitigate damages lacks factual support. Defendant Arvest Bank
Operations, Inc. has responded in partial opposition to the Motion. Defendant “does not
dispute that Plaintiff had cancer at the time he was separated from employment” and that
“cancer qualifies as an actual disability under the ADAAA.” See Def.’s Resp. Br. [Doc.
No. 64] at 6. Defendant does dispute, however, that Plaintiff currently has a disability and
that its affirmative defense can be resolved as a matter of law. The Motion is fully briefed
and ready for disposition.
Defendant has also filed a motion for summary judgment that is addressed by a separate order.
Standard of Decision
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In appropriate circumstances, a party may obtain summary
judgment on part of a claim or defense. See id.; see also Harrison v. Eddy Potash, Inc.,
248 F.3d 1014, 1023 (10th Cir. 2001) (affirming ruling that plaintiff “was entitled to
summary judgment on three elements of her Title VII claim”). A material fact is one that
“might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that a
reasonable jury could return a verdict for either party. Id. at 255.
The movant bears the initial burden of demonstrating the absence of a dispute of
material fact warranting summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). If the movant carries this burden, the nonmovant must go beyond the
pleadings and “set forth specific facts” that would be admissible in evidence and that show
a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). “To accomplish this, the
facts must be identified by reference to affidavits, deposition transcripts, or specific
exhibits incorporated therein.” Adler, 144 F.3d at 671; see Fed. R. Civ. P. 56(c)(1)(A). If
a party who would bear the burden of proof at trial lacks sufficient evidence on an essential
element of a claim or defense, all other factual issues concerning the claim or defense
become immaterial. See Celotex, 477 U.S. at 322.
Statement of Undisputed Facts
The facts relevant to Plaintiff’s Motion are not disputed. Plaintiff is a former
employee of Defendant who was diagnosed in June 2015 with metastatic, stage IV
melanoma that had spread to his lungs. Plaintiff was also diagnosed with thyroid cancer,
and his thyroid was surgically removed in September 2015. In October 2015, Plaintiff
began treatment of the melanoma with a cancer medication, Keytruda® (pembrolizumab),
administered by infusion every three weeks. His physicians recommended radioactive
iodine therapy for the thyroid cancer, but this treatment has been postponed during the
Since his termination by Defendant in November 2015, Plaintiff has repeatedly
applied for other employment in the banking industry. Defendant questions whether
Plaintiff has sought suitable employment, arguing that the job titles listed in his
applications indicate higher-level positions than his prior job of loan manager. However,
the focus of Plaintiff’s Motion is Defendant’s failure to produce any discovery materials
showing the availability of suitable jobs for which Plaintiff failed to apply.
Plaintiff’s Protected Status
An essential element of Plaintiff’s claim that Defendant terminated his employment
on the basis of disability in violation of the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq., is proof that Plaintiff was an individual with an actual “disability”
as defined by § 12102(1)(A) at the time of his termination.2 Plaintiff contends the
undisputed facts establish this element of his ADA claim. Defendant does not disagree
with this contention.3 Defendant instead argues that Plaintiff has not established a broader
proposition suggested by his Motion, namely, that he is currently disabled.
Both parties seem to agree that the question of “whether Plaintiff is currently
disabled for purposes of the ADAAA, or even whether Plaintiff had a disability after
leaving employment with [Defendant], is of no consequence to this litigation.” See Def.’s
Resp. Br. [Doc. No. 64] at 5 (emphasis in original); Pl.’s Reply Br. [Doc. No. 65] at 2-3.
To the extent the Motion is unclear, Plaintiff clarifies in his reply brief that the relief sought
is “a summary determination of Plaintiff’s status as a disabled person at the time of
termination.” See Pl.’s Reply Br. [Doc. No. 65] at 2 n.3. Under the facts and law shown
by the Motion and the summary judgment record, there is no dispute that Plaintiff is entitled
to this relief.
For these reasons, the Court finds that Plaintiff is entitled to summary judgment on
an essential element of his ADA discrimination claim: he had a “disability” within the
meaning of the statute at the time Defendant terminated his employment.
Plaintiff’s theory of liability in this case rests solely on this definition; he does not claim
protection under § 12102(1)(B) and (C) for persons having a “record of” or “being regarded as” disabled.
In fact, Defendant affirmatively states in the opening brief for its motion for summary judgment:
“Arvest does not dispute Plaintiff had a disability (cancer) under the ADAAA at the time of his separation
from employment.” See Def.’s Mot. Summ. J. [Doc. No. 53] at 23 n.15.
Defendant’s Mitigation Defense
Defendant has asserted as an affirmative defense to Plaintiff’s claim for damages
allegedly caused by the termination of his employment, that Plaintiff failed to mitigate his
damages. See Def.’s Answer [Doc. No. 10] at 6, ¶ 42. It is well settled that Defendant
bears the burden of proving Plaintiff “did not exercise reasonable efforts to mitigate
damages.” McClure v. Ind. Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th Cir. 2000). “To
satisfy its burden, ‘the [employer] must establish (1) that the damage suffered by plaintiff
could have been avoided, i.e. that there were suitable positions available which plaintiff
could have discovered and for which he was qualified; and (2) that plaintiff failed to use
reasonable care and diligence in seeking such a position.’” Id. (quoting EEOC v. Sandia
Corp., 639 F.2d 600, 627 (10th Cir. 1980)).
By his Motion, Plaintiff challenges Defendant to come forward with facts and
evidence to demonstrate the first element of its defense. Defendant makes no effort to
respond to this challenge but, instead, simply asserts that it “may cross examine Plaintiff
in order to establish a failure to mitigate defense.” See Def.’s Resp. Br. [Doc. No. 64] at 3,
¶ 4; id. at 8. Defendant also presents a vague argument that it should have “the opportunity
to cross-examine and use impeachment evidence at trial to establish its defense.” Id. at 9.
Regarding the issue raised by Plaintiff’s Motion, Defendant presents no facts and
identifies no potential evidence that would establish the availability of suitable positions
after Plaintiff’s termination that he failed to apply for or otherwise pursue. To the contrary,
Defendant argues in its brief that Plaintiff’s applications for job vacancies were not directed
at suitable positions but ones “at a higher management level than the position he held at
Arvest.” See id. Defendant thus seems to contend its cross-examination and impeachment
of Plaintiff would establish no suitable positions were sought or, presumably, available.
Therefore, on the summary judgment record presented, the Court finds that
Defendant has failed to demonstrate the existence of a genuine dispute of material fact
regarding an essential element of its affirmative defense and that Plaintiff is entitled to
summary judgment in his favor on the defense of failure to mitigate damages.
For these reasons, the Court finds that Plaintiff is entitled to partial summary
judgment on the issue of his protected status under the ADA at the time of his termination
and on Defendant’s affirmative defense that Plaintiff failed to mitigate his damages.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Partial Summary
Judgment [Doc. No. 52] is GRANTED as set forth herein.
IT IS SO ORDERED this 27th day of June, 2017.
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