United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant National Oilwell
Varco, L.P.'s Motion for Summary Judgment [Doc. No. 41],
filed pursuant to Fed.R.Civ.P. 56 and LCvR56.1. Defendant
seeks a judgment in its favor on Plaintiffs' claims of
disability discrimination under the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et
seq. Alternatively, Defendant seeks a determination that
Plaintiffs cannot recover backpay or punitive damages as a
matter of law and that Plaintiffs failed to mitigate their
Christopher Dunsworth and Shawn Shelton have filed a joint
response in opposition to the Motion, disputing both that
Defendant is entitled to summary judgment on their ADA claims
and that Defendant is entitled to a determination of any
damages issues. See Pls.' Resp. Br. [Doc. No.
47]. Defendant has filed a timely reply brief [Doc. No. 55].
Thus, the Motion is fully briefed and at issue.
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). In appropriate circumstances, a party may
obtain summary judgment on a part of a claim or a defense.
See id.; see also Hutchinson v. Pfeil, 105
F.3d 562, 564 (10th Cir. 1997) (“defendant may use a
motion for summary judgment to test an affirmative
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
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
its Motion, Defendant asserts as one basis for summary
judgment that Plaintiffs cannot recover back pay, nor seek
reinstatement or front pay, because they rejected an
unconditional offer of reinstatement that was made on the
same day their employment ended. Defendant relies on a legal
rule announced in Ford Motor Co. v. EEOC, 458 U.S.
219 (1982), which is an affirmative defense to liability.
See Giandonato v. Sybron Corp., 804 F.2d 120, 122
(10th Cir. 1986); see also Anastasio v. Schering
Corp., 838 F.2d 701, 707-08 (10th Cir. 1988).
“Where, as here, a defendant moves for summary judgment
to test an affirmative defense, ‘[t]he defendant . . .
must demonstrate that no disputed material fact exists
regarding the affirmative defense asserted.' Once the
defendant makes this initial showing, ‘the plaintiff
must then demonstrate with specificity the existence of a
disputed material fact.'” Helm v. Kansas,
656 F.3d 1277, 1284 (10th Cir. 2011) (quoting
Hutchinson, 105 F.3d at 564).
of Undisputed Facts
worked for Defendant as temporary contract workers in jobs
they obtained through a staffing agency on the recommendation
of a former high school classmate, Jacob Folmar. Folmar was
the plant manager of Defendant's manufacturing facility
in Oklahoma City where a division of the company, Tuboscope,
makes parts that Defendant uses to provide oilfield services.
The relevant facts are straightforward and largely
August 2013, Plaintiffs learned of job openings at
Defendant's facility through Folmar, with whom they had
remained in contact after high school through social media.
Folmar was aware Plaintiffs had performed military service
and were veterans, but he did not know they had been
discharged with disability ratings from the Department of
Veterans Affairs (“VA”). Plaintiff Christopher
Dunsworth met with Folmar and discussed available positions.
Dunsworth did not mention during the conversation any
physical impairment or issues related to an injury during his
military service; he had previously performed oilfield
service work and other work without experiencing issues due
to that injury.
had a contract with SOS Staffing Services, Inc. (“SOS
Staffing”) to provide personnel for the Tuboscope
facility. Dunsworth applied for employment at Tuboscope's
facility through SOS Staffing on August 12, 2013, and
Plaintiff Shawn Shelton applied on August 15, 2013. On August
19, 2013, Dunsworth began working as a trainee on a computer
numeric control machine. On August 26, 2013, Shelton began
working as a trainee on a manual machine. Plaintiffs
carpooled to work together after Shelton was hired.
required all workers at its Tuboscope facility to attend a
one-day safety orientation before starting work. During
Plaintiffs' safety training, they were asked (like all
new workers) to disclose any medications that could cause a
safety issue. Shelton told the Tuboscope safety
representative, Andrew Lee, that he was not taking any
medications. At some point, Dunsworth informed Lee about the
prescription medications he received through the VA by
showing them to Lee. Lee expressed concern about a pain
medication that was prescribed for use on an as-needed basis.
Dunsworth told Lee that he took it only at night because it
caused drowsiness and helped him sleep. Plaintiffs were also
instructed during their orientation to call in and speak to a
supervisor or manager if they were going to be absent or
late, and to request sick leave using a written form.
was not Plaintiffs' immediate supervisor or trainer. He
did not interact with them directly except on August 26,
2013, Dunsworth told Folmar that he needed time off for a
doctor's appointment and Folmar approved Dunworth's
oral request to be absent. Also, on August 29, 2013, Folmar
learned that Plaintiffs had failed to show up for work at
their scheduled times without calling their respective
supervisors or him about being tardy or absent, and Lee told
Folmar about Dunsworth's prescribed pain medication.
by the “no call no show” of workers whom he had
recommended, Folmar reached out to Plaintiffs - first by
attempting to call them and then by sending a group text
message. The following exchange occurred beginning at 8:25
Folmar: So I'm guessing u guys gave up on me or found
something better? Hope ...