Keneipp v. MVM, Inc.

• Decision Date: 27 July 2017
• Docket Number: Case No. 15–CV–565–JED
• Citation: 267 F.Supp.3d 1317
• Parties: David L. KENEIPP, Plaintiff, v. MVM, INC., Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

267 F.Supp.3d 1317

David L. KENEIPP, Plaintiff,

v.MVM, INC., Defendant.

Case No. 15–CV–565–JED

United States District Court, N.D. Oklahoma.

Signed July 27, 2017

John Wallace Griffin, Jr., Michael J. Neuerburg, Marek Griffin & Knaupp, Victoria, TX, Katherine L. Butler, Butler & Harris, Houston, TX, Michael Dennis McGrew, Michael D. McGrew & Associates PC, Oklahoma City, OK, for Plaintiff.

Steven L. Rahhal, Jonathan Gary Rector, Dallas, TX, for Defendant.

OPINION AND ORDER

JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE

Before the Court are the Motion for Partial Summary Judgment (Doc. 36) filed by plaintiff, David L. Keneipp, and the Motion for Summary Judgment (Doc. 34) filed by the defendant, MVM, Inc. Because the motions share common factual and legal arguments, the Court will consider them in one order.

I. Background

MVM terminated Mr. Keneipp's employment on October 2, 2014. Keneipp asserts that the termination was in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, because MVM terminated him based upon a perceived disability, while he was completely qualified to continue in his job as a Court Security Officer (CSO) for the federal court.

MVM contracts with the United States Marshals Service (USMS) to provide security services to federal judges, court personnel, and visitors. Until 2014, when it terminated Mr. Keneipp, MVM employed him as a CSO to provide security to the Tulsa federal building. Based on its contract with USMS, MVM required Keneipp to submit to an annual fitness for duty examination. USMS contracts with the Federal Occupational Health agency (FOH) to review CSO medical records to determine whether a CSO meets the USMS's physical and medical standards.

Mr. Keneipp completed and submitted a CSO Medical Review Form at the request of USMS. The FOH reviewed the Form and determined that he did not meet the CSO physical and medical standards. The FOH then advised USMS that Keneipp was "not medically qualified to perform the essential functions of the job." (Doc. 36–8). The physician stated that Keneipp did not meet the standards because he suffered from serious back pain and sciatica. USMS sent a letter to MVM stating, "[i]t has been determined that Mr. Keneipp must discontinue performing under the contract. Mr. Keneipp does not meet the CSO medical standards required by the contract." (Doc. 36–8). MVM terminated Keneipp by letter the following day, stating that the letter "is to advise you that your employment with MVM, Inc. has been terminated effective October 2, 2014 as you did not meet contract requirements for the medical exam." (Doc. 36–3). A copy of the Medical Review Form was enclosed. (See id. ).

At the time MVM terminated Keneipp, it knew that he was fully qualified and able to perform the essential functions of his duty as a CSO at all times through his date of termination. (Doc. 45 at 9 [Response to Plaintiff's Fact No. 3] ). Although MVM's termination letter plainly informs Keneipp that his employment was terminated based on the medical issues presented in the Medical Review Form (see Doc. 36–3), MVM denies that it terminated him "because of the government physician's determination that [Keneipp] did not meet the USMS's CSO physical and medical standards." (Doc. 45 at 12). MVM now asserts that it terminated Keneipp's employment "because he could not work on the USMS contract, and [MVM] was not servicing any other contracts on which [Keneipp] could work." (Id. at 12–13). Keneipp alleges that he was terminated because his employer regarded him as disabled.

II. Summary Judgment Standards

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for a nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. The courts thus determine "whether the evidence presents 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." Id. at 251–52, 106 S.Ct. 2505. The non-movant's evidence is taken as true, and all justifiable and reasonable inferences are to be drawn in the non-movant's favor. Id. at 255, 106 S.Ct. 2505. The court may not weigh the evidence and may not credit the evidence of the party seeking summary judgment, while ignoring the evidence offered by the non-movant. Tolan v. Cotton , ––– U.S. ––––, 134 S.Ct. 1861, 1866–68, 188 L.Ed.2d 895 (2014) (per curiam).

Both parties have filed for summary judgment, and the "[c]ross motions for summary judgment are to be treated separately; the denial of one does not require the grant of the other." Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n , 483 F.3d 1025, 1030 (10th Cir. 2007) (quoting Buell Cabinet Co. v. Sudduth , 608 F.2d 431, 433 (10th Cir. 1979) ). "Even where the parties file cross motions pursuant to Rule 56, summary judgment is still inappropriate if disputes remain as to material facts."

Christian Heritage , 483 F.3d at 1030 (citing Atl. Richfield Co. v. Farm Credit Bank of Wichita , 226 F.3d 1138, 1148 (10th Cir. 2000) ).

III. Analysis

A. ADA Standards

The ADA prohibits "discriminat[ion] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Discrimination can be proved through direct evidence or circumstantial evidence. Khalik v. United Air Lines , 671 F.3d 1188 (10th Cir. 2012). In the absence of direct evidence, the Court must analyze the evidence under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ; see also Morgan v. Hilti, Inc. , 108 F.3d 1319 (10th Cir. 1997).

The McDonnell Douglas framework involves three steps: (1) Mr. Keneipp bears the initial burden of establishing a prima facie case of discrimination under the ADA; (2) the burden shifts to MVM to show a legitimate, non-discriminatory reason for the termination; and, (3) Mr. Keneipp must then show that "there is at least a genuine issue of material fact as to whether the employer's proffered legitimate reason is genuine or pretextual." Smothers v. Solvay Chem., Inc. , 740 F.3d 530, 538 (10th Cir. 2014) ; see also McDonnell Douglas , 411 U.S. at 802–03, 93 S.Ct. 1817. If Keneipp meets the prima facie burden, then MVM must offer a legitimate, non-discriminatory reason for the employment action, which is a burden of production, not one of persuasion. Smothers , 740 F.3d at 539 (citing E.E.O.C. v. Horizon/CMS Healthcare Corp. , 220 F.3d 1184, 1191 (10th Cir. 2000) ). To establish pretext, Mr. Keneipp must then show "either that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation is unworthy of credence." Id. (quoting Zamora v. Elite Logistics, Inc. , 478 F.3d 1160, 1166 (10th Cir. 2007) ). If "a plaintiff demonstrates that an employer's proffered reasons are ‘unworthy of credence,’ a jury may ‘infer the ultimate fact of discrimination.’ " Id. at 546 (quoting Swackhammer v. Sprint/United Mgmt. Co. , 493 F.3d 1160, 1167 (10th Cir. 2007) ).

B. MVM's Motion for Summary Judgment

MVM argues that it is entitled to summary judgment because Keneipp cannot establish his disability claim. Keneipp's burden at the prima facie stage requires only a "small amount of proof necessary to create an inference" of discrimination or retaliation, by a preponderance of the evidence, and the burden is "not onerous." Smothers , 740 F.3d at 539 (quoting Orr v. City of Albuquerque , 417 F.3d 1144, 1149 (10th Cir. 2005) ). To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate (1) that he is disabled or perceived as disabled, as defined by the ADA, (2) that he is qualified to perform the essential functions of the job, and (3) that he was terminated "under circumstances which give rise to an inference that the termination was based on [his] disability." Smothers , 740 F.3d at 544 (citations omitted); see also Hennagir v. Utah Dept. of Corrections , 587 F.3d 1255, 1261 (10th Cir.2009) ; Butler v. City of Prairie Vill. , 172 F.3d 736, 748 (10th Cir. 1999) ; Koessel v. Sublette Cty. Sheriff's Dep't , 717 F.3d 736, 742 (10th Cir. 2013).

MVM admits that Mr. Keneipp was fully qualified to perform the essential functions of the job, such that the second prong of his prima facie case is satisfied (Doc. 45, p 9; Doc 36–1). With respect to the first prong, Keneipp claims that he was improperly perceived as disabled. The ADA defines disability as "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3))." 42 U.S.C. § 12102(1). An individual is "regarded as" having such an impairment "if the individual establishes that he or she has been subject to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A).

Initially, the Supreme Court narrowly construed the "regarded as" prong of the definition of disability, interpreting "regarded as" to "require a plaintiff to plead and prove that she was regarded as having an impairment that fit the terms of the first prong—that is, that she was regarded as having an...