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Rhames v. City of Bixby

United States District Court, N.D. Oklahoma

April 18, 2018

SHAD RHAMES, Plaintiff,
CITY OF BIXBY and IKE SHIRLEY, in his Official Capacity, Defendants.



         Now before the Court is Defendants' Motion for Summary Judgment and Brief in Support (Dkt. # 33). Defendants argue that plaintiff was not a qualified person with a disability and that he cannot establish a prima facie case of discrimination under the Americans with Disabilities Act as amended, 42 U.S.C. § 12101 et seq. (ADA). Plaintiff responds that defendants actively interfered with his medical treatment and terminated his employment based on a mistaken belief that he had permanent restrictions that would prevent him from working as a police officer.


         Shad Rhames was hired as a police officer by the City of Bixby (the City) in December 2001. Dkt. # 2, at 2. The job description for a police officer provided by the City states that the major duties include patrolling on foot or in a vehicle, investigating possible crime scenes and suspicious activity, and apprehending and arresting persons suspected of criminal activity. Dkt. # 33-21, at 2. A police officer must respond to citizen complaints and perform crowd control if needed, and there are also administrative duties, such as preparing investigative notes and reports and drafting search warrants. Id. The position requires skill in driving a patrol car and knowledge and familiarity with the use of firearms. Id. at 3. The physical demands of the job include lifting light and heavy objects, using tools that require a high degree of dexterity, and using physical dexterity and force to apprehend suspects. Id. at 4. A police officer must possess the physical strength and stamina needed to chase and subdue fleeing suspects, including the ability to walk or run for long distances and lift or drag up to 165 pounds. Id.

         Rhames suffered an on-the-job injury in 2003 and he was placed on light duty. He was medically cleared to return to full duty about 18 months later. Dkt. # 2, at 2. On April 9, 2012, Rhames stepped into a hole and twisted his left knee while chasing a fleeing suspect, but he finished his shift and did not immediately seek medical attention. Dkt. # 33-1, at 5-6. In June 2012, Rhames requested to see a doctor for examination of his left knee, and his paperwork was processed as soon as he made his request. Id. at 11, 21-22; Dkt. # 33-2. Rhames visited an orthopedic specialist, Jeff Fox, M.D., who diagnosed Rhames with a strain of the left knee. Dkt. # 33-4, at 2. Dr. Fox would allow Rhames to return to work only if it was limited to a “sit down job.” Id. Ike Shirley is the Chief of Police for the Bixby Police Department, and he testified in his deposition that he operates a small police department that does not have a full-time light duty position for police officers. Dkt. # 33-5, at 7. However, the police department can offer short-term accommodations of light duty when it appears that a police officer is likely to resume all of the duties if permitted a short period of time to recover. Id. at 7-8.

         Rhames visited Dr. Fox several times but decided he wanted a second opinion. His workers' compensation attorney requested a referral to a new physician. Dkt. # 33-4, at 5; Dkt. # 33-6. Rhames was unhappy with the treatment being provided by Dr. Fox and he felt that Dr. Fox was actually making his knee worse. Dkt. # 45-6, at 2-3. Rhames was referred to Darnell Blackmon, M.D., and Dr. Blackmon performed two arthroscopic surgeries on Rhames' left knee. Dkt. # 33-1, at 29-30; Dkt. # 45-7, at 3-4, 7-8. After the first surgery in February 2013, Dr. Blackmon placed restrictions on Rhames as to bending, squatting, and climbing, and he indicated that Rhames was likely to receive a full release to work in three months. Dkt. # 33-7, at 2. On April 19, 2013, the City offered to allow Rhames to return to work on light duty and acknowledged all of the restrictions recommended by Dr. Blackmon. Dkt. # 33-8. Rhames further injured his knee during physical therapy, and Dr. Blackmon performed a second surgery on Rhames' knee to repair a torn meniscus. Dkt. # 45-7, at 5. The City renewed its offer for Rhames to return to work on light duty and set a date of June 17, 2013 for Rhames to report. Dkt. # 33-10. The City did not have a full-time light duty position for police officers, and this was intended to be a short-term accommodation to allow Rhames to return to work before he had made a full recovery. Dkt. # 33-5, at 3-7. Rhames did not accept the City's offer to return to work on light duty and, in August 2013, the City again renewed its request that Rhames return to work on light duty. Dkt. # 33-11. Rhames returned to work on light duty under the supervision of Sergeant Blake Annis, and he remained on light duty from August 2013 to June 2014. Dkt. # 33, at 8; Dkt. # 45, at 5.

         Rhames received numerous oral counselings and reprimands from Annis. Annis prepared a disciplinary report stating that Rhames failed to appear at an implied consent hearing scheduled for January 25, 2013. Dkt. # 33-12. The report states that notice was “hand delivered” to Rhames, and that the revocation of the individual's driver's license was set aside due to Rhames' failure to appear at the hearing. Id. The reprimand was delayed because Rhames was off duty when the incident occurred.[1] Id. Rhames had been reprimanded in February 2012 for being unprepared to testify at a telephonic hearing. Dkt. # 33-13. On September 8, 2013, Rhames was disciplined for failing to properly document time off and for other inaccuracies on his time sheet. Dkt. # 33-14. On December 11, 2013, Rhames received an oral counseling for failing to write a report after a citizen reported a possible crime. Dkt. # 33-15. Rhames claimed that he did not write a report because the victim produced a written statement. Id. at 3. In May 2014, Rhames was again disciplined for failing to complete his timesheet and improperly documenting sick leave. Dkt. # 33-16. On May 13, 2014, Annis completed an employee evaluation of Rhames and rated his work as unsatisfactory. Dkt. # 33-17.

         Shirley had been advised by Annis and Sergeant Andrew Choate that there was not enough light duty work for Rhames, and Shirley testified in his deposition that this was a concern even before Rhames was offered a chance to return to work on light duty. Dkt. # 33-5, at 12-14. Rhames' direct supervisor, Annis, also did not believe that Rhames was performing the duties assigned to him at a satisfactory level, but Annis did not make the determination to remove Rhames from light duty. Dkt. # 33-9, at 10-14. On June 12, 2014, Choate drafted a memorandum recommending that “Rhames no longer be allowed to take advantage of our generosity of light duty, ” because Rhames had commented that he had no desire to return to full-duty and he was a negative influence on other officers. Dkt. # 45-31. Shirley does not recall that he received or reviewed Choate's memorandum, but he does remember speaking to Annis and Choate about performance issues raised in the memorandum. Dkt. # 51-1, at 2-15. Later in June 2014, Shirley advised Rhames that he did not have enough light duty work to support a full-time position and, as of June 24, 2014, Rhames was removed from light duty status. Dkt. # 33-18. However, Rhames' employment as a police officer was not terminated, and he was placed on workers' compensation leave. Dkt. # 33-1, at 57-58; Dkt. # 33-5, at 16-17. The City continued to receive work status reports from Rhames' physician, Dr. Blackmon, and Shirley reviewed the work status reports. Dkt. # 33-5, at 22-28. On May 19, 2015, Dr. Blackmon submitted a work status report stating that Rhames was restricted from lifting, carrying, pushing, or pulling over 20 pounds, and he could not squat or climb ladders. Dkt. # 45-38. The report states in two places that the restrictions were permanent, and he was released from further medical treatment by Dr. Blackmon. Id. at 1, 3. The report further stated that Rhames was totally disabled from work and it gave no possible date that Rhames would likely be able to return to work. Id. at 3. This report was the first time that Rhames' treating physician had notified the City that Rhames had permanent restrictions that would prevent him from returning to work as a police officer. Dkt. # 33-5, at 27.

         Shirley determined that Rhames would be unable to return to work as a police officer due to his permanent physical restrictions. Id. at 16-20; 27-28. Shirley sent notice to Rhames that a pre-termination due process hearing was set for July 1, 2015, because he had “received information that you are no longer capable of performing the essential job functions of a Bixby Police Officer” due to permanent physical restrictions. Dkt. # 33-22, at 2. The purpose of the hearing was to “make certain that a mistake is not made about the facts presented to [Shirley] regarding [Rhames'] ability to function as a police officer.” Id. Rhames appeared at the pre-termination hearing and he was represented by counsel. Dkt. # 45-18, at 1. Rhames did not bring a doctor to testify on his behalf or any medical records, but he did testify that he believed he was still in need of medical treatment and he was seeking a second opinion concerning further treatment of his injured knee. Dkt. # 33-5, at 28; Dkt. # 45-18. On July 7, 2015, Shirley sent a letter to Rhames notifying him that Shirley had found just cause to terminate Rhames' employment due to Rhames' permanent physical restrications. Dkt. # 33-23. Rhames' employment would be deemed terminated on August 25, 2015 when his accumulated vacation time, sick leave, and compensatory time would expire. Id.

         Shirley submitted paperwork to the Oklahoma Police Pension Retirement Board (OPPRB) that Rhames was disabled for the purpose of serving as a police officer. Dkt. # 33-5, at 5. The OPPRB held a hearing on September 21, 2015, and Rhames appeared at the hearing with counsel.

         Dkt. # 33-24, at 2. The basic facts of the case were stated as follows:

Mr Rhames has 13 years, 5 months and 4 days service with the Bixby Police Department. The date of his knee/hip injury is April 9, 2012. Mr. Rhames has been on injury leave for approximately 3 years. The chief has reviewed the case and there is no position in the Bixby Police Department or the City of Bixby that Mr. Rhames can fill.

Id. at 3. The OPPRB concluded that the City had “met its burden of proof that there is no position that [Rhames] can fill . . . .” Id. at 3. In addition to the proceedings before the OPPRB, Rhames also filed two grievances under the collective bargaining agreement (CBA) between the City and the Fraternal Order of Police Lodge No. 189. The first grievance was filed on June 24, 2015, and he argued that the City had improperly deducted vacation time while he was on workers' compensation leave. Dkt. # 33-28, at 2. Shirley received the grievance on July 7, 2015, and he denied the grievance ten days later. On August 13, 2015, Rhames filed a second grievance challenging the termination of his employment, and he claimed that the termination of his employment violated the the workers' compensation provision of the CBA. The grievance was denied on August 26, 2015. Dkt. # 33-29.

         On December 13, 2016, Rhames filed this case against the City and Shirley alleging claims of discrimination and failure to accommodate under the ADA (first claim for relief), retaliation under the ADA (second claim for relief), retaliation in violation of the Family and Medical Leave Act, 29 U.S.C. § 2615(a)(2) (FMLA) (third claim for relief), and intentional infliction of emotional distress (fourth claim for relief). Dkt. # 2. Defendants filed a motion for summary judgment (Dkt. # 33), and plaintiff filed a motion (Dkt. # 36) to reopen discovery after the motion was filed. Plaintiff's motion to reopen discovery was referred to a magistrate judge, and the magistrate judge granted plaintiff's motion. Dkt. # 44. Discovery was reopened for 20 days and plaintiff was permitted to take a second deposition of Shirley and Choate. Id. at 3. Plaintiff was also giving additional time to prepare a response to defendants' motion for summary judgment. Id. In light of plaintiff's request to reopen discovery, the Court struck all other deadlines in the scheduling order pending a ruling on defendants' motion for summary judgment.


         Summary judgment pursuant to Fed.R.Civ.P. 56 is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.'” Id. at 327.

         “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one ...

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