United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Motion for
Partial Summary Judgment [Doc. No. 52], filed pursuant to
Fed.R.Civ.P. 56. 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.
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.
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.
of Undisputed Facts
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 melanoma treatment.
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
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. Plaintiff contends the undisputed facts
establish this element of his ADA claim. Defendant does not
disagree with this contention. Defendant instead argues that
Plaintiff has not established a broader proposition suggested
by his Motion, namely, that he is currently disabled.
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.
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.