United States District Court, N.D. Oklahoma
DAVID L. KENEIPP, Plaintiff,
MVM, INC., Defendant.
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
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.
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
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
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.
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.
Summary Judgment Standards
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 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (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. 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. 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. 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, 134
S.Ct. 1861, 1866-68 (2014) (per curiam).
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)).
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 (1973); see also Morgan v. Hilti, Inc., 108
F.3d 1319 (10th Cir. 1997).
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. 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., 748 F.3d 1160, 1166 (10th Cir. ...