United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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. 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.
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.
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.
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.
33-24, at 2. The basic facts of the case were stated as
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.
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.
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.
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