United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE
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
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. 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.
does dispute that Defendant is entitled to summary judgment
on his ADA claim. See Id. at 16-30. 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.
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).
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 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
of Undisputed Facts
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.
March 2014, Ron Witherspoon became president of
Defendant's Oklahoma City branch and Plaintiff's
supervisor. 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, ” 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.
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.
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.
Prima Facie Case of ...