Hull v. Arvest Bank Operations Inc

Filing 87

ORDER granting in part and denying in part 53 Defendant's Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 8/11/2017. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

STEPHEN CHARLES HULL,
Plaintiff,
v.
ARVEST BANK OPERATIONS, INC.,
d/b/a ARVEST BANK,
Defendant.

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Case No. CIV-16-69-D

ORDER
This matter comes before the Court on Defendant’s Motion for Summary Judgment
[Doc. No. 53], filed pursuant to Fed. R. Civ. P. 56 and LCvR56.1. Defendant Arvest Bank
Operations, Inc. seeks a judgment in its favor on all claims asserted in the Amended
Complaint: 1) disability discrimination in violation of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq.; 2) age discrimination and retaliation in violation of the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 101 et seq.; and 3) age and
disability discrimination and retaliation in violation of the Oklahoma Anti-Discrimination
Act, Okla. Stat. tit. 25, § 1101 et seq. 1
Plaintiff Stephen Hull has responded in partial opposition to the Motion. See Pl’s
Resp. Br. [Doc. No. 63]. Regarding his ADEA claims of age discrimination and retaliation,
Plaintiff affirmatively states that he “voluntarily abandons” these claims. See id. at 16.

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Defendant does not address Plaintiff’s state law claims separately but asserts that these claims
fail because the federal claims fail. See Def.’s Mot. Summ. J. [Doc. No. 53] at 22 n.14 & 28 n.17.

Further, he provides no facts or evidence to support any ADEA claim. Accordingly, the
Court finds that Defendant is entitled to summary judgment on Plaintiff’s ADEA claims of
age discrimination and retaliation.
Plaintiff does dispute that Defendant is entitled to summary judgment on his ADA
claim. See id. at 16-30. 2 Defendant has filed a reply brief [Doc. No. 67], and both parties
have made supplemental submissions based on evidence subsequently developed during
discovery. See Pl.’s Suppl. Resp. Br. [Doc. No. 80]; Def.’s Suppl. Reply Br. [Doc. No. 84].
Standard of Decision
Summary judgment is proper “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). 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. All facts and reasonable inferences must be viewed in the light most favorable
to the nonmoving party. Id. If a party who would bear the burden of proof at trial lacks
sufficient evidence on an essential element of a claim, all other factual issues concerning
the claim become immaterial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant bears the initial burden of demonstrating the absence of a dispute of
material fact warranting summary judgment. Celotex, 477 U.S. at 322-23. If the movant
carries this burden, the nonmovant must go beyond the pleadings and “set forth specific

2

Like Defendant, Plaintiff does not separately address his state law claims. The Court accepts the
parties’ assumption that Plaintiff’s state law claims survive or fail for the same reasons as his federal claims.

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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). “The court need consider only the
cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
The Court’s inquiry is whether the facts and evidence identified by the parties present “a
sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251-52.
Statement of Undisputed Facts
Plaintiff began employment with Defendant in Missouri in December 2009. In June
2011, he was promoted to loan manager and moved to Oklahoma City, Oklahoma. From
2011 through 2013, Plaintiff’s performance evaluations reflected some criticism of his
communication style and interpersonal skills, but he received positive remarks and ratings
in all other areas. Throughout his employment by Defendant, Plaintiff’s performance was
rated as satisfactory or better by his supervisors, and he received no discipline.
In March 2014, Ron Witherspoon became president of Defendant’s Oklahoma City
branch and Plaintiff’s supervisor. 3

In February 2015, Mr. Witherspoon completed

Plaintiff’s annual performance appraisal. Plaintiff’s overall rating and his ratings in most
performance areas, including supervisory skills, were described as “meets requirements,”

3

Until January 2014, Plaintiff was supervised in Oklahoma City by Kelly Brander, and for
approximately two months before Mr. Witherspoon arrived, Brad Krieger was Plaintiff’s supervisor.

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and he received ratings of “exceptional” and “commendable” in customer relations and
service.

See Def.’s Ex. 12 [Doc. No. 53-12] at 4-6.

Mr. Witherspoon was critical,

however, of the results of Plaintiff’s manager evaluation survey by associates under his
supervision, and instructed Plaintiff to work on improving these response ratings. Plaintiff
attributes some of the negative survey feedback to the pressure of increased financial goals
for his department.
In April or May 2015, a cyst removed from Plaintiff’s head was determined to be
malignant. In June 2015, Plaintiff was diagnosed with metastatic, stage IV melanoma that
had spread to his lungs. Plaintiff also was 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 melanoma treatment.
It is unclear exactly when Defendant learned of Plaintiff’s diagnoses and treatment.
Plaintiff has testified that he first informed Defendant’s human resources manager, Janice
Fox, of his melanoma cancer diagnosis in July 2015; Ms. Fox recalls learning of it in
August or September. Mr. Witherspoon has testified that his assistant told him in “mid
2015,” that is “late spring, early summer, like April, May, June time frame,” that Plaintiff
had cancer, although she did not know anything specific, and that he reported it to Ms. Fox.
See Witherspoon Dep. 11:25-13:3; 13:21-14:6. Plaintiff did not request an accommodation
of his medical condition from Defendant.

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In November 2015, Mr. Witherspoon decided to terminate Plaintiff’s employment.
According to Mr. Witherspoon, he reached this decision because he “had lost confidence
in [Plaintiff’s] ability to lead” his department due to a combination of factors, including a
former employee’s complaint about Plaintiff and an unsatisfactory manager evaluation
survey. See Witherspoon Dep. 18:4-11; 38:4-8; 49:17-51:5. Specifically, on October 22,
2015, Rebecca Schoelen resigned; she later cited Plaintiff’s management style as a factor
in her resignation and accused him of discriminating against female employees. While
investigating Ms. Schoelen’s complaint, Defendant received another complaint about
Plaintiff’s communication and leadership styles, and Defendant conducted a new manager
evaluation survey regarding Plaintiff. On November 12, 2015, Mr. Witherspoon received
the results of the survey, and the scores and comments showed a higher rate of negative
feedback compared to the February 2015 survey, although the majority of responses
remained positive. Plaintiff was terminated effective November 15, 2017.
Discussion
A.

Prima Facie Case of Disability Discrimination
Plaintiff relies for proof of his ADA disability discrimination claim on the familiar

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To establish a prima facie case of disability discrimination, Plaintiff “must show that, at
the time he was fired, (1) he was a disabled person as defined by the ADA; (2) he was
qualified, with or without reasonable accommodation, to perform the essential functions of
his job; and (3) he was fired because of his disability.” See Carter v. Pathfinder Energy
Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011); accord Hawkins v. Schwan’s Home
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Serv., Inc., 778 F.3d 877, 883 (10th Cir. 2015). Defendant concedes Plaintiff was disabled
as defined by 42 U.S.C. § 12102(2). 4 Also, the Court has granted summary judgment in
Plaintiff’s favor on this element of his ADA claim. See 6/26/17 Order [Doc. No. 86] at 4.
Only the other two elements are disputed. Plaintiff bears the burden “at the summaryjudgment phase to ‘rais[e] a genuine issue of material fact on each element of his prima
facie case.’” Hawkins, 778 F.3d at 883 (quoting Davidson v. Am. Online, Inc., 337 F.3d
1179, 1189 (10th Cir. 2003)).
1.

Qualified for the Position of Loan Manager

“The term ‘qualified,’ with respect to an individual with a disability, means that the
individual satisfies the requisite skill, experience, education and other job related
requirements of the employment position such individual holds or desires and, with or
without reasonable accommodation, can perform the essential functions of such position.”
29 C.F.R. § 1630.2(m). Plaintiff contends he can satisfy this element of his claim because
he was successfully performing the job-related requirements of his position of loan
manager, and any deficiencies in his interpersonal or communication skills, as alleged by
Defendant, did not affect his ability to perform the essential functions of the job. 5

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Defendant states it “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.
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The question of whether a plaintiff is a “qualified individual” for an ADA claim involves “a twopart analysis.” See Adair v. City of Muskogee, 823 F.3d 1297, 1307 (10th Cir. 2016) (quoting Hawkins,
778 F.3d at 887). “First, we ask 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. (internal quotation omitted).
“[S]econd, if we conclude that Plaintiff is not able to perform the essential functions of the job, we must
determine whether any reasonable accommodation by the employer would enable him to perform those
functions.” Id. (internal quotation omitted). In this case, Plaintiff contends he satisfies the first step and
does not address the second.

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The ADA does not define “essential functions” but mandates that “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 essential functions
of the job.” See 42 U.S.C. § 12111(8). Tenth Circuit case law incorporates implementing
regulations that define the concept to mean “the fundamental job duties of the employment
position” and identify appropriate considerations. See Adair v. City of Muskogee, 823 F.3d
1297, 1307 (10th Cir. 2016) (quoting 29 C.F.R. § 1630.2(n)(1)).
(3) Evidence of whether a particular function is essential includes, but is not
limited to:
(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
29 C.F.R. § 1630.2(n)(3). “Provided that any necessary job specification is job-related,
uniformly enforced, and consistent with business necessity, the employer has a right to
establish what a job is and what is required to perform it.” Hennagir v. Utah Dep’t of
Corr., 587 F.3d 1255, 1262 (10th Cir. 2009) (internal quotations omitted); accord Picture
People, 684 F.3d at 986. “Determining whether a particular function is essential is a factual
inquiry.” Davidson, 337 F.3d at 1191.

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Upon consideration of the facts and evidence presented, the Court finds that Plaintiff
has demonstrated a genuine dispute of material fact regarding his ability to perform the
“essential functions” of his position of loan manager. First, Defendant’s job description
for the position does not include employee supervision or interpersonal skills as part of the
“Essential Duties and Responsibilities” of the job. See Def.’s Ex. 5 [Doc. No. 53-5] at 1.
Defendant challenges Plaintiff’s fitness by pointing to items listed in the job description
that are categorized as “Team Accountabilities” or “Other Skills and Abilities.” See Def.’s
Mot. Summ. J. [Doc. No. 53] at 9, ¶ 5 & 24-25; Def.’s Ex. 5 at 2. Second, Plaintiff never
received an unsatisfactory job evaluation in the position of loan manager, and Defendant’s
corporate representative has testified that Plaintiff “was not terminated for unsatisfactory
performance.” See Andress Dep. 45:14-15. A reasonable inference from this testimony is
that Plaintiff was satisfactorily performing the essential functions of his position but
Mr. Witherspoon simply “lost faith” in Plaintiff’s leadership ability. Id. 45:15-17.
On the record presented, the Court finds that Plaintiff has sufficiently shown that he
was qualified, without an accommodation, for the position of loan manager.
2.

Discrimination Based on Disability

Defendant also challenges Plaintiff’s ability to establish the third element of a prima
facie case that he was terminated because of his disability, commonly referred to as a
“causation” element. See Carter, 662 F.3d at 1147. Defendant contends Plaintiff cannot
establish a causal connection between Mr. Witherspoon’s knowledge of Plaintiff’s medical
condition and the termination decision made several months later, and Plaintiff lacks any
evidence to suggest discriminatory animus against disabled persons.
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Plaintiff relies for proof of causation on generally-recognized methods of creating
an inference of discrimination. Plaintiff points out that he was replaced in the position by
an individual who was not disabled, that non-disabled persons who were similarly situated
were not terminated, and that he was fired within approximately six weeks after starting
chemotherapy treatment of his melanoma.

Defendant either disputes these facts or

contends they are insufficient to show disability discrimination. However, viewing the
record in the light most favorable to Plaintiff, as required by Rule 56, the Court finds that
Plaintiff has presented sufficient facts to meet his burden at the prima-facie stage – a burden
that is “not onerous” – to show he was terminated “under circumstances which give rise to
an inference that the termination was based on [his] disability.” See Butler v. City of Prairie
Village, 172 F.3d 736, 748-49 (10th Cir. 1999) (internal quotation omitted).
For these reasons, the Court finds that Plaintiff has demonstrated the existence of a
genuine dispute of material facts that preclude summary judgment on the ground that he
cannot establish a prima facie case of disability discrimination.
B.

Proof of Pretext
Defendant also asserts, and persuasively argues, that Plaintiff cannot show its stated

reasons for terminating his employment are pretextual. “A plaintiff can establish pretext
by showing the defendant’s proffered non-discriminatory explanations for its actions are
so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude
they are unworthy of belief.” EEOC v. C.R. England, Inc., 644 F.3d 1028, 1038-39 (10th
Cir. 2011) (internal quotations and alterations omitted); see Foster v. Mountain Coal Co,
830 F.3d 1178, 1194 (10th Cir. 2016). “A plaintiff demonstrates pretext by showing either
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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) (internal quotation omitted).
Defendant has not been consistent in its defense of Plaintiff’s claim. Its original
position in the litigation was that Plaintiff voluntarily resigned his position. See Answer
[Doc. No. 10] at 3, ¶ 7 & 6, ¶ 40. Further, Mr. Witherspoon in his deposition testimony
attributed the termination decision, in part, to the results of a “BAI survey.”

See

Witherspoon Dep. 38:4-9; 49:17-23. Although this survey is not fully explained, it served
to evaluate the Oklahoma City branch as a whole, including Mr. Witherspoon, and predated
the complaints about Plaintiff. Id. 51:6-25. Defendant has abandoned this reason in its
summary judgment briefs. Regarding one factor on which Defendant has settled to justify
the termination decision – the complaint by Ms. Schoelen – Defendant overstates the
results of the investigation; Ms. Schoelen’s complaint of gender discrimination was not
substantiated and was not a factor in the decision. See Andress 40:14-23. 6 Further,
Defendant ignores that Ms. Schoelen also complained about the person who was her direct
supervisor when she resigned, Paul Krus, but he was not investigated or even interviewed.
See Andress Dep. 60:18-24; Krus Dep. 19:24-20:19.
Upon consideration of the facts and evidence in the light most favorable to Plaintiff,
the Court finds that Plaintiff has shown sufficient inconsistencies and weaknesses in
Defendant’s explanation of the decision to terminate his employment, when combined with

6

Defendant apparently uses the phrase “hostile work environment” colloquially in its briefs,
referring to a harsh or intimidating management style. See, e.g., Def.’s Reply Br. [Doc. No. 67] at 7.

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the subjective nature and the timing of Mr. Witherspoon’s “loss of confidence” in Plaintiff,
that a jury could reasonably conclude Defendant’s asserted reason for the termination
decision is pretextual and Plaintiff’s disability was a determining factor. Thus, the Court
finds that Plaintiff has sufficiently demonstrated the existence of a genuine dispute of
material facts and that summary judgment is inappropriate on Plaintiff’s disability
discrimination claims.
Conclusion
For these reasons, the Court finds that Defendant is entitled to summary judgment
on Plaintiff’s claims of age discrimination and retaliation asserted under the ADEA and
state law but that genuine disputes of material facts preclude summary judgment on
Plaintiff’s disability discrimination claims under the ADA and state law.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment
[Doc. No. 53] is GRANTED in part and DENIED in part, as set forth herein.
IT IS SO ORDERED this 11th day of August, 2017.

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