Dunsworth et al v. National Oilwell Varco LP

RESPONSE in Opposition re MOTION for Summary Judgment and Brief in Support

W.D. Okla.October 12, 2018

Case No. 5:17-CV-895-D IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (1) CHRISTOPHER TYLER DUNSWORTH, AND (2) SHAWN SHELTON, Plaintiffs, V. (1) NATIONAL OILWELL VARCO, L.P., A DELAWARE FOREIGN LIMITED PARTNERSHIP, D/B/A: NOV TUBOSCOPE MACHINING SVCS, Defendant PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Richard R. Rice, OBA #15129 Orion A. Strand, OBA #33279 Rice Law Firm 1401 S. Douglas Blvd., Ste. A Midwest City, OK 73130 (405) 732-6000 / (405) 737-7446 Rick@RiceLawFirm.net Orion@RiceLawFirm.net ATTORNEYS FOR PLAINTIFF Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 1 of 37 i TABLE OF CONTENTS TABLE OF CONTENTS ..................................................................................................... i TABLE OF AUTHORITIES ............................................................................................... ii INTRODUCTION ............................................................................................................... 1 NOV’S STATEMENT OF UNDISPUTED MATERIAL FACTS ..................................... 2 PLAINTIFFS’ STATEMENT OF ADDITIONAL MATERIAL FACTS WHICH PRECLUDE SUMMARY JUDGMENT ............................................................................ 8 ARGUMENTS AND AUTHORITIES ............................................................................... 9 I. Standard of Review. ................................................................................................ 9 II. NOV Has Failed to Meet Its Burden. .................................................................... 10 A. Direct Evidence of Discrimination - Folmar’s Text Message and Email. ...... 10 B. McDonnell Douglas ........................................................................................... 15 1. Prima Facie Case ........................................................................................... 16 a. Plaintiffs can present sufficient evidence to satisfy the first prong of the prima facie test for discrimination. .................................................................... 17 b. The second prong of the prima facie case is met showing causation between perceived disabilities and adverse employment decision. ................................. 19 2. NOV’s proffered reasoning for Plaintiffs’ termination is merely pretextual. 22 Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 2 of 37 ii a. The August 29th tardy was not even a motivating factor for the termination. 22 b. Plaintiffs can establish but-for causation for their termination, but this is not a requirement for a Title I ADA claim under existing law. .............................. 23 III. Plaintiffs Are Able To Recover Damages As A Matter Of Law....................... 25 A. Plaintiffs Justifiably Rejected Folmar’s Alleged Offer of Reinstatement. ........ 25 B. Plaintiffs Made Reasonable and Diligent Searches for Alternative Employment Such That They Have Not Failed to Mitigate Their Damages. ................................. 27 C. Punitive Damages are Warranted for NOV’s Knowing and Intentional Violation of the ADA. ............................................................................................................... 28 CONCLUSION ................................................................................................................. 30 CERTIFICATE OF SERVICE .......................................................................................... 31 TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................................... 13 Bones v. Honeywell Int’l, Inc., 366 F.3d 869 (10th Cir. 2004) .......................................... 28 Bones v. Honeywell Int’l., Inc., 366 F.3d 869 (10th Cir. 2004) ......................................... 20 Carter v. Pathfinder Energy Services, Inc., 662 F.3d 1134 (10th Cir. 2011) .................... 28 Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526 (10th Cir. 1994) .............................. 13 Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 3 of 37 iii Courtney v. Biosound, Inc., 42 F.3d 414 (7th Cir. 1994) ................................................... 13 Doe v. Bd. of Cty. Comm'rs of Payne Cty., Okla., 613 F. App'x 743 (10th Cir. 2015)) ... 27 E.E.O.C. v. Heartway Corp., 466 F.3d 1156 (10th Cir. 2006) .......................................... 33 E.E.O.C. v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166 (10th Cir. 1985) ............ 29 EEOC v. Wiltel, Inc., 81 F.3d 1508 (10th Cir. 1996) ......................................................... 19 Equal Employment Opportunity Comm'n v. BNSF Ry. Co., 853 F.3d 1150 (10th Cir. 2017) ....................................................................................................................................... 21 Equal Employment Opportunity Comm'n v. Sandia Corp., 639 F.2d 600 (10th Cir. 1980) ....................................................................................................................................... 31 Ewing v. Amoco Oil Co., 823 F.2d 1432 (10th Cir. 1987) ................................................ 12 Fassbender v. Correct Care Sols., LLC, 890 F. 3d 875 (10th Cir. 2018) .................... 14, 19 Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1263 (10th Cir. 1995) ...... 32 Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ............................................................... 29 Fuerschbach v. S.W. Airlines Co., 439 F.3d 1197 (10th Cir. 2006).................................. 13 Furr v. AT&T Techs., Inc., 824 F.2d 1537 (10th Cir. 1987) .............................................. 19 Giandonato v. Sybron Corp., 804 F.2d 120 (10th Cir. 1986) ........................................... 29 Gross v. FBL Financial Svcs., Inc., 557 U.S. 167 (2009) ................................................. 27 Hall v. U.S. Dep’t of Labor, Admin. Review Bd., 475 F.3d 847 (10th Cir. 2007) .............. 17 Heim v. Utah, 8 F.3d 1541 (10th Cir. 1993) ....................................................................... 18 Jones v. United Parcel Serv., Inc., 502 F.3d 1176 (10th Cir. 2007) .................................. 24 King of Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084 (10th Cir. 1999) .......... 13 Manna v. Phillips 66 Co., 304 F. Supp. 3d 1064 (N.D. Okla. 2018) ................................ 24 Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 4 of 37 iv McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ................................... 14, 19, 26 McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995) ....................................... 13 Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164 (10th Cir. 2006) .................. 19 Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997 (7th Cir. 2000)..................................... 19 Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997) ................................................ 26, 28 Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202 (10th Cir. 1977) .. 13 Nevitt v. U.S. Steel Corp., 18 F. Supp. 3d 1322 (N.D. Ala. 2014) .................................... 24 Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21 (1st Cir. 2002) .................................... 17 Perry v. Woodward, 199 F.3d 1126 (10th Cir. 1999) ......................................................... 19 Robuck v. Am. Axle and Mfg., 2012 WL 6151988 (W.D. Mich. Dec. 11, 2012) .............. 25 Sanders v. Southwestern Bell Telephone, L.P., 544 F.3d 1101 (10th Cir. 2008) .............. 17 School Bd. of Nassau Cty. v. Arline, 480 U.S. 273 (1987) ............................................... 21 Seamons v. Snow, 206 F.3d 1021 (10th Cir. 2000) ........................................................... 33 Sias v. City Demonstration Agency, 588 F.2d 692 (9th Cir. 1978) .................................... 31 Steele v. Thiokol Corp., 241 F.3d 1248 (10th Cir. 2001) ................................................... 20 Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988) ..................... 13 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) .......................................... 20, 21, 24 Tabor v. Hilti, Inc., 703 F.3d 1206 (10th Cir. 2013) ......................................................... 17 United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir. 1979) .................. 31 Young v. Dillon Companies, Inc., 468 F.3d 1243 (10th Cir. 2006) ................................... 26 Statutes Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 5 of 37 v 42 U.S.C. § 12102(1)(A) ................................................................................................... 20 42 U.S.C. § 12102(1)(C) ............................................................................................. 20, 23 42 U.S.C. § 12102(3)(B) ................................................................................................... 24 42 U.S.C. § 12112(a) ..................................................................................................... 4, 19 Title VII of the Civil Rights Act of 1964 .......................................................................... 18 Other Authorities 2008 Senate Statement of Managers at 9; 2008 House Judiciary Committee Report ....... 30 29 C.F.R. § 1630.2(g)(1)(iii) ............................................................................................. 17 29 C.F.R. pt. 1630 App. § 1630.2. ..................................................................................... 21 29 C.F.R. pt. 1630, App. § 1630.2(l) ................................................................................. 30 Treatises Cheryl L. Anderson, Unification of Standards in Discrimination Law: The Conundrum of Causation and Reasonable Accommodation Under the ADA, 82 Miss. L.J. 67, 68 (2013) ....................................................................................................................................... 24 Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 6 of 37 Page 1 of 31 INTRODUCTION Plaintiffs Christopher Dunsworth and Shawn Shelton (collectively, “Plaintiffs”) have brought this action against National Oilwell Varco d/b/a Tuboscope Machining Services (“NOV”) for discrimination in violation of the Americans with Disabilities Act 42 U.S.C. § 12112(a) (the “ADA”). Specifically, Plaintiffs allege that they were subjected to an improper medical inquiry and then terminated on the basis of their disabilities; or, in the alternative, that NOV’s plant manager, Jacob Folmar, regarded Plaintiffs as disabled when he made the decision to terminate their employment. Plaintiffs are both military veterans, and both sustained injuries while in service giving them both disability ratings. Plaintiffs knew Folmar from high school so they responded to Folmar’s posting in August of 2013 indicating NOV was looking for machinists to work at the factor in Oklahoma City. At orientation, NOV’s then-Health and Safety Executive, Andrew Lee, trained Plaintiffs on safety procedures to follow while working on the factory floor. Mr. Lee directed the new hires to bring in all medications which they took so that they could be assessed for alleged safety reasons. Mr. Dunsworth brought in his pain medication, Flexeril, which he takes at night to help alleviate back pain from his service injury. Mr. Lee then advised Mr. Dunsworth to leave that medication at home. During the orientation, Mr. Lee overheard Mr. Shelton discussing his disability rating with another military veteran. On August 29th, 2013, two days after Plaintiffs completed orientation, they were scheduled to work at 8:00 am but had overslept and were running late. About that time, Mr. Lee met with Mr. Folmar and informed him that Plaintiffs were late and that the Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 7 of 37 Page 2 of 31 Plaintiffs were on medication. As a result, Mr. Folmar testified that he assumed Plaintiffs were disabled. Therefore, at 8:25 am that same morning, Mr. Folmar sent Plaintiffs a text terminating them by stating “NOV is not a big fan of hiring people with disabilities.” At 8:32 am, Mr. Folmar emailed Holly Carratini and Kristle McKim of SOS Staffing, the outside hiring agency that assisted NOV in hiring individuals, saying that he had terminated Plaintiffs, saying Plaintiffs “have some physical disabilities that they are taking pain meds for on an as needed basis and NOV is not a fan of that nor am I. If I would have known this prior I would have never sent them or given them the offer.” Due to the clear violation of the ADA, NOV is liable to Plaintiffs for actual and exemplary damages. NOV clearly is misstating the facts of the case, and for these reasons, its Motion for Summary Judgment should be denied. NOV’S STATEMENT OF UNDISPUTED MATERIAL FACTS 1. Plaintiffs admit Paragraph 1 of NOV’s Statement of Undisputed Material Facts. 2. Plaintiffs deny the allegations contained in Paragraph 2. NOV’s assertion in the first sentence is belied by the fact that Plaintiffs were terminated by Jacob Folmar-- NOV’s plant manager—in a text that stated, “NOV is not a fan of hiring people with disabilities.” Exhibit 1, Folmar Text Messages. (Mr. Folmar also sent an email to SOS Staffing setting out the same proposition Exhibit 2, Folmar Email to SOS.) Additionally, the second sentence of Paragraph 2 is clearly false as NOV can provide no proof they investigated this, or any other claims of discrimination, retaliation, and harassment. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 8 of 37 Page 3 of 31 3. Regarding Paragraph 3, Plaintiffs admit that NOV maintains written policies and procedures addressing discrimination in the workplace; Plaintiffs deny they were ever informed about any ethics hotline maintained by NOV for reporting discrimination complaints; and Plaintiffs deny they ever received a document showing how to report legal and ethical violations. 4. Plaintiffs admit Paragraph 4 of NOV’s Statement of Undisputed Material Facts. 5. Plaintiffs admit Paragraph 5 of NOV’s Statement of Undisputed Material Facts. 6. Plaintiffs admit Paragraph 6 of NOV’s Statement of Undisputed Material Facts. 7. Plaintiffs admit Paragraph 7 of NOV’s Statement of Undisputed Material Facts. 8. Plaintiffs admit Paragraph 8 of NOV’s Statement of Undisputed Material Facts. 9. Plaintiffs admit Paragraph 9 of NOV’s Statement of Undisputed Material Facts. 10. Plaintiffs admit Paragraph 10 of NOV’s Statement of Undisputed Material Facts but deny that this fact is material to any of the claims or defenses raised in this action, as Plaintiffs do not allege that they were terminated by SOS Staffing. See Dkt. 1. 11. Plaintiffs admit Paragraph 11 of NOV’s Statement of Undisputed Material Facts but deny that this fact is material to any of the claims or defenses raised in this action, as Plaintiffs do not allege that they were terminated by SOS Staffing. See Dkt. 1. 12. Plaintiffs admit Paragraph 12 of NOV’s Statement of Undisputed Material Facts but deny that this fact is material to any of the claims or defenses raised in this action, as Plaintiffs do not allege that SOS Staffing discriminated against them. See Dkt. 1. 13. Plaintiffs admit Paragraph 13 of NOV’s Statement of Undisputed Material Facts. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 9 of 37 Page 4 of 31 14. Plaintiffs admit Paragraph 14 of NOV’s Statement of Undisputed Material Facts but deny that this fact is material to any of the claims or defenses raised in this action as Plaintiffs do not allege that SOS Staffing terminated them or discriminated against them on any basis. See Dkt. 1 15. Plaintiffs admit Paragraph 15 of NOV’s Statement of Undisputed Material Facts. 16. Plaintiffs admit Paragraph 16 of NOV’s Statement of Undisputed Material Facts. 17. Regarding Paragraph 17 of NOV’s Statement of Undisputed Material Facts: Plaintiffs deny that NOV does not make inquiries or discuss disabilities as is evidenced by Plaintiff Dunsworth’s testimony that Andrew Lee instructed all employees to disclose all prescription medications. Exhibit 3, Dunsworth Depo. at 110:21-111:14; Exhibit 5, Shelton Depo. at 63:8-14. While Plaintiffs admit that NOV discussed the use of impairing medications with employees, Plaintiffs deny that these discussions are purely related to safety concerns. Id. Plaintiffs admit that they were asked to disclose all medications, but deny that the purpose of this improper inquiry was purely related to safety concerns. Id. Plaintiffs admit that there are safety-related concerns associated with the medications they were asked to disclose but deny that these concerns were the true reason for the improper disability-related inquiry to which they were subjected at NOV’s orientation. Id. 18. Plaintiffs admit Paragraph 18 of NOV’s Statement of Undisputed Material Facts. 19. Plaintiffs admit Paragraph 19 of NOV’s Statement of Undisputed Material Facts. 20. Plaintiffs admit Paragraph 20 of NOV’s Statement of Undisputed Material Facts. 21. Plaintiffs admit Paragraph 21 of NOV’s Statement of Undisputed Material Facts. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 10 of 37 Page 5 of 31 22. Plaintiffs admit Paragraph 22 of NOV’s Statement of Undisputed Material Facts. 23. Paragraph 23 of NOV’s Statement of Undisputed Material Facts mischaracterizes the facts in the case. Plaintiffs deny that these facts are material to any of the claims or defenses raised in this action as they were not terminated by NOV on the basis of their tardiness, as evidenced by the follow-up text message from Jacob Folmar. See Exhibit 1, Folmar Text Messages, p. 3. Mr. Folmar further testified that a single tardy would not be a basis for an employee’s termination in the first place. Exhibit 4, Folmar Depo. at 35:1-5. 24. Paragraph 24 of NOV’s Statement of Undisputed Material Facts mischaracterizes the facts in the case. Plaintiffs deny that these facts are material to any of the claims or defenses raised in this action because they were not terminated by NOV on the basis of their tardiness, as evidenced by the follow-up text message from Jacob Folmar. Exhibit 1, Folmar Text Messages, p. 3. 25. Regarding Paragraph 25 of NOV’s Statement of Undisputed Material Facts: Plaintiffs are without sufficient information or belief concerning Mr. Folmar’s mental state at the time he learned that Plaintiffs were not at work for their scheduled shift but deny the implication that this pretext was the true reason for the events that followed; Plaintiffs deny that the “no call/no show” was a basis for their termination, as evidenced by the initial text messages that Folmar sent to them, as well as the follow-up text messages stating that they would be permitted to return to work despite their tardiness (Exhibit 1, Folmar Text Messages); and Plaintiffs deny that Folmar was merely trying to “pass off the blame” in his decision to terminate Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 11 of 37 Page 6 of 31 Plaintiffs, as evidenced principally by Mr. Folmar’s statements in an email sent to SOS Staffing personnel which make the same assertions. Exhibit 2, Folmar Email to SOS. The pretext Mr. Folmar offers to excuse his text messages to Plaintiffs is completely lacking as to this email, which again states that “NOV is not a fan of [disabilities].” Id. 26. Regarding Paragraph 26 of NOV’s Statement of Undisputed Material Facts: Plaintiffs admit that Folmar called them prior to sending the text messages; andThe plain language of the text message Folmar sent to them indicates the true reason for Plaintiffs termination: “NOV is not a big fan of hiring people with physical disabilities.” Exhibit 1, Folmar Text Messages, p. 2. Therefore, while Plaintiffs admit Folmar “wished them the best,” that is the extent of NOV’s fair characterization of the text message in question. Plaintiffs therefore deny the remaining portion of this assertion. 27. Plaintiffs admit Paragraph 27 of NOV’s Statement of Undisputed Material Facts. 28. Plaintiffs deny Paragraph 28 of NOV’s Statement of Undisputed Material Facts. The truth of Folmar’s discriminatory animus in terminating Plaintiffs is stated in plain and clear language in the text message itself. Exhibit 1, Folmar Text Messages, p. 2. Folmar’s backpedaling in this pretextual explanation is belied by the repetition of his (and more importantly, NOV’s) discriminatory hiring practices to a third party before which Folmar had no reason to pass blame. Exhibit 2, Folmar Email to SOS. 29. Plaintiffs admit Paragraph 29 of NOV’s Statement of Undisputed Material Facts. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 12 of 37 Page 7 of 31 30. Regarding Paragraph 30 of NOV’s Statement of Undisputed Material Facts: Plaintiffs deny that Folmar’s statements in the second text message were false; Plaintiffs are without sufficient information or belief to admit or deny whether any other NOV employee had knowledge of the text message itself at the time Folmar sent it, however, Plaintiffs deny the assertion that no other NOV employee was aware of NOV’s unofficial custom or practice of discriminating against persons with disabilities; and Plaintiffs admit that Folmar received disciplinary action on November 10, 2013, but only after three months had elapsed and only after a Charge of Discrimination was filed with the EEOC pertaining to the incident. See Defendant’s Exhibit 3, p. 14; Plaintiff’s Exhibit 4, Folmar Depo. at 45:23-46:7. 31. Plaintiffs admit the statements in Paragraph 31. 32. Plaintiffs admit that Folmar called and texted Plaintiffs once he realized he had exposed NOV to legal liability, as alleged in Paragraph 32 of NOV’s Statement of Undisputed Material Facts; Plaintiffs deny the characterization of Folmar’s statements as “false.” See Exhibit 2, Folmar Email to SOS. 33. Regarding Paragraph 33 of NOV’s Statement of Undisputed Material Facts: Plaintiffs admit that Folmar and NOV attempted to reach out to Plaintiffs but Plaintiffs are uncertain Folmar was making an offer to them about their jobs after realizing that Folmar’s statements and NOV’s unofficial discriminatory customs or practices had exposed them to legal liability; while Plaintiffs admit that this message could be characterized as an offer of reinstatement, they are without sufficient information or belief to admit or deny whether it qualifies as such; Plaintiffs admit Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 13 of 37 Page 8 of 31 that they received Folmar’s calls and subsequent voice messages on August 29, 2013; and Plaintiffs admit that they were contacted by SOS Staffing and informed that NOV was attempting to reach them. 34. Plaintiffs admit Paragraph 34 of NOV’s Statement of Undisputed Material Facts. 35. Plaintiffs admit Paragraph 35 of NOV’s Statement of Undisputed Material Facts. 36. Plaintiffs admit the statements in Paragraph 36. 37. Plaintiffs admit the statements in Paragraph 37. 38. Plaintiffs admit the statements in Paragraph 38. 39. Plaintiffs admit the statements in Paragraph 39. PLAINTIFFS’ STATEMENT OF ADDITIONAL MATERIAL FACTS WHICH PRECLUDE SUMMARY JUDGMENT 1. During the orientation conducted by NOV’s Health and Safety Executive, Andrew Lee overheard Shelton discussing his VA disability ratings with a fellow co-worker. Exhibit 5, Shelton Depo. at 61:16-62:13. 2. When Plaintiffs did not arrive on time on August 29, 2013, Lee informed Folmar that at least one of the Plaintiffs was taking medications which caused safety concerns. Exhibit 4, Folmar Depo. at 24:16-25:13. 3. Folmar testified that he assumed, on the basis of the disclosed pain medication, that both Plaintiffs had physical disabilities when he sent Plaintiffs the text messages terminating their employment. Exhibit 4, Folmar Depo. at 27:13-28:3. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 14 of 37 Page 9 of 31 4. On August 29, 2013, after sending the text messages to Plaintiffs attached as Exhibit 1, Mr. Folmar sent an email to Holly Carattini and Krystal McKim of SOS Staffing, stating: Tyler nor Shawn has shown or called today. That’s okay, figured something wasn’t going to go right always happens with people you know from your past. They also have some physical disabilities that they are taking pain meds for on an as needed basis and NOV is not a fan of that nor am I. If I would have known this prior I would have never sent them or given them the offer. Exhibit 2, Folmar Email to SOS. ARGUMENTS AND AUTHORITIES I. Standard of Review. Because summary judgment deprives a litigant of their Seventh Amendment right to a jury trial, “[t]he moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment.” Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir. 1987) (emphasis added). The Court may only grant NOV’s Motion for Summary Judgment if it finds that it “has established the absence of any genuine issue as to a material fact.” Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202, 204 (10th Cir. 1977). A fact is material only where it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is also disfavored in employment discrimination cases because they tend to revolve around issues of intent and motivation, which are more properly determined by a jury. See Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir. 1994); Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994) (“[T]he summary judgment standard is applied with added rigor in employment discrimination cases, where Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 15 of 37 Page 10 of 31 intent and credibility are crucial issues.” (citations omitted)). While summary judgment can nevertheless be useful in weeding out claims obviously lacking in merit, such is demonstrably not the case here. See Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 709 (10th Cir. 1988) overruled on other grounds by McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995). As demonstrated herein, numerous material issues of fact remain unaddressed and awaiting determination at trial. In consideration of a motion for summary judgment, it is well settled that the Court must consider as true all the evidence—together with all inferences reasonable drawn therefrom—in favor of the non-moving party. See, King of Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084 (10th Cir. 1999); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202, 204 (10th Cir. 1977); Fuerschbach v. S.W. Airlines Co., 439 F.3d 1197, 1207 (10th Cir. 2006). II. NOV Has Failed to Meet Its Burden. NOV is correct that a plaintiff may prove discrimination in violation of the ADA either by submitting direct evidence of discrimination, or by submitting circumstantial evidence and articulating a prima facie case via the McDonnell Douglas three step burden shifting framework. Fassbender v. Correct Care Sols., LLC, 890 F. 3d 875 (10th Cir. 2018). However, the evidence and caselaw refute NOV’s assertion that Plaintiffs cannot show direct evidence of discrimination. A. Direct Evidence of Discrimination - Folmar’s Text Message and Email. NOV’s assertion that Plaintiffs do not have direct evidence of discrimination is somewhat puzzling given the content of the messages which terminated Plaintiffs Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 16 of 37 Page 11 of 31 employment and the corroborating email that Mr. Folmar sent to SOS Staffing. See Exhibits 1 & 2. Indeed, this is one of the rare employment discrimination cases where the defendant employer has provided a clear written statement of discriminatory motive in terminating the plaintiff’s employment. Contrary to NOV’s repeated assertions, this is not merely a case of discriminatory “comments” from which one would have to infer a discriminatory motive behind an adverse employment action. Rather, the message itself is a speech-act, terminating Plaintiffs’ employment in itself and stating the reason for the adverse action. No inference is necessary beyond the plain meaning of the words themselves. It may be useful at this point to break down the text messages themselves. At 8:25am, Mr. Folmar was apparently under the assumption that Plaintiffs had not come into work because they were quitting due to having “found something better.” Exhibit 1, Folmar Text Messages. Mr. Shelton then replies that he “overslept,” indicating that he had not abandoned the job, but was just going to be late for his shift. Mr. Folmar then replies with the message stating: “I don’t think it’s gonna work out,” which Plaintiffs naturally and reasonably interpreted as a termination. Mr. Folmar goes on to explain that Plaintiffs were being terminated because of the “physical issues and needing to take pain meds for them.” As noted above, Mr. Folmar was informed by Mr. Lee that Plaintiff Dunsworth was prescribed pain medications. Plaintiff Shelton also testified that Mr. Lee overheard his conversation with a co-working regarding his disabled status with the VA. Whether Mr. Lee informed Mr. Folmar of Plaintiff Shelton’s disabled status is a question of fact and credibility—however, it is clear from the message itself that Mr. Folmar believed that both Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 17 of 37 Page 12 of 31 Plaintiffs had physical issues (which was true) and that they had physical disabilities (which was also true). Mr. Folmar then states that “NOV is not a fan of hiring people with physical disabilities.” Again, NOV and Mr. Folmar’s new explanation for this statement defies logic, reason, and credibility. If Mr. Folmar were really just “upset” that Plaintiffs didn’t show up, he likely would have simply made some inflammatory comments about tardiness and untrustworthiness, but he did not. Mr. Folmar clearly and unequivocally stated that the company he represents and who gave him the authority to make employment decisions openly discriminates against the disabled, or persons they regard as disabled. Even worse, Mr. Folmar goes on to say that if he “would have known about [the physical issues or disabilities] before I would have said something.” While this statement is somewhat ambiguous, it is not too difficult to suss out the meaning. The most natural interpretation is that if Mr. Folmar had known about the physical disabilities, he never would have hired Plaintiffs in the first place. He shows some remorse because Plaintiffs had made it through training and orientation only to later find out that NOV would not be interested in continuing their employment due to their disabilities. While there are some assumptions made in this explanation, the Court need not indulge in them because Mr. Folmar explains in his email to SOS Staffing that Plaintiffs “have some physical disabilities that they are taking pain meds for on an as needed basis and NOV is not a fan of that nor am I. If I would have known this prior I would have never sent them or given them the offer.” Exhibit 2, Folmar Email to SOS. The same propositions with the same reasoning are presented here as in the text message, and both constitute direct evidence of discrimination. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 18 of 37 Page 13 of 31 The only counter-interpretation NOV offers for the text message (without addressing the email at all) is simply that Mr. Folmar was upset. Again, being upset does not explain why an individual would speak on behalf of their employer in stating a discriminatory hiring practice, rather than just being angry about absenteeism. Finally, at 11:49am, after speaking with his supervisors and being counseled that he had just handed Plaintiffs a federal discrimination case, Mr. Folmar sent a follow-up message stating that he wanted to “see if u just overslept” and that he wanted “to try an [sic] still make this work.” Exhibit 1, Folmar Text Messages. This final message is the final nail in the coffin that NOV built for itself. It establishes conclusively that Plaintiffs would not have been fired for tardiness or absenteeism, and that the only reason for the termination was Plaintiffs’ disabled status. Despite all of this, NOV nevertheless maintains that Plaintiffs have no direct evidence of discrimination. Direct evidence is that “from which the trier of fact may conclude, without inference, that the employment action was undertaken because of the employee’s protected status.” Sanders v. Southwestern Bell Telephone, L.P., 544 F.3d 1101, 1105 (10th Cir. 2008). Further, “[a] statement that can plausibly be interpreted two different ways—one discriminatory and the other benign—does not directly reflect illegal animus, and, thus, does not constitute direct evidence.” Hall v. U.S. Dep’t of Labor, Admin. Review Bd., 475 F.3d 847, 854-55 (10th Cir. 2007) (quoting Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir. 2002). If the text message and email penned by Mr. Folmar regarding Plaintiffs’ termination are not direct evidence of discrimination, it is difficult to imagine what would Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 19 of 37 Page 14 of 31 be direct evidence. Without NOV’s back peddling pretextual interpretation and looking at the plain language of the message itself, there is no other reasonable interpretation that can be ascribed than that NOV actively discriminates against disabled persons, and that it was terminating Plaintiffs employment pursuant to that de facto practice. There is no inference that the Court need draw in order to interpret the text message and email as direct evidence of discriminatory motive in Plaintiffs’ termination. This conclusion is supported by the applicable case law as well. For instance, in Tabor v. Hilti, Inc., 703 F.3d 1206, 1217 (10th Cir. 2013), the employer’s division manager made several discriminatory comments, such as that “women have inferior knowledge of tools and inferior ability to sell tools.” In that case, the Tenth Circuit looked at “[t]he content of his statements, the interview context, and the temporal proximity to the adverse employment decision,” and ultimately concluded that the division manager’s “remarks may be considered direct evidence of discrimination. Id. Applying the same analysis here, the text message terminating Plaintiffs’ employment and stating the reason therefor is even more direct than the comments at issue in Tabor. If that weren’t enough, the email stating the same discriminatory motive sent to a neutral third party, to whom Mr. Folmar had no motive to lie, is even further direct evidence which also undermines the pretext NOV advances as an alternative explanation because the reasoning offered for the text message is simply not applicable to the email. NOV’s theory that the text message can be construed along with the line of cases denying discrimination claims based on mere “comments” fails as well, as those cases are simply inapposite to the facts here. In Heim v. Utah, 8 F.3d 1541 (10th Cir. 1993), for example, the Court found that the plaintiff/employee had failed to prove gender Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 20 of 37 Page 15 of 31 discrimination in violation of Title VII of the Civil Rights Act of 1964 because, inter alia, she failed to show that her assignment to office duties alongside a male co-worker was primarily based on her gender. Id. at 1543. In support of her case, Ms. Heim offered “a single offensive comment made by her direct supervisor . . . in an angry outburst.” Id. at 1546. The court noted that the remark was inappropriate, but held that insufficient evidence was presented connecting the employment decision to the remark. Id. Here, by contrast, Mr. Folmar’s text message (1) noted Plaintiffs’ physical disabilities, (2) stated NOV’s discriminatory views as to disabled persons, (3) terminated Plaintiffs’ employment, and (4) stated that the reason for the termination was pursuant to NOV’s discriminatory views, all in the same message (not to mention the email to SOS Staffing). There is virtually no more direct form in which Mr. Folmar could have possibly connected his and NOV’s discriminatory views with the adverse employment decision affecting the Plaintiffs in this case. This same logic applies to each and every other case NOV offers on this point.1 B. McDonnell Douglas The ADA 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). Where a Plaintiff in an employment discrimination case arising under the ADA lacks direct evidence of discrimination, the 1 Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997 (7th Cir. 2000); Fassbender v. Correct Care Sols., LLC, 890 F.3d 875 (10th Cir. 2018) Perry v. Woodward, 199 F.3d 1126 (10th Cir. 1999); EEOC v. Wiltel, Inc., 81 F.3d 1508 (10th Cir. 1996); Furr v. AT&T Techs., Inc., 824 F.2d 1537 (10th Cir. 1987). Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 21 of 37 Page 16 of 31 burden shifting framework set forth under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) requires a plaintiff to state a prima facie case of discrimination, which the defendant may rebut by offering “a legitimate, non-[discriminatory] reason for the employment action.” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006). If the defendant offers such a non-discriminatory motivation, then the burden shifts to the plaintiff to show that the proffered motivation is merely pretextual. Id. The evidence in this case is so direct and irrefutable that it almost defies logic to consider that the McDonnell Douglas framework would even be applicable. However, even if this framework is applicable, Defendant has failed to show entitlement to summary judgment on that front as well. 1. Prima Facie Case The classic prima facie case of discrimination under the ADA requires a plaintiff to show: (1) that he is disabled; (2) that he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held; and (3) “the employer terminated [his] employment under circumstances which give rise to an inference that the termination was based on [his] disability.” Bones v. Honeywell Int’l., Inc., 366 F.3d 869 (10th Cir. 2004). Defendant apparently does not dispute that Plaintiffs were qualified for their positions with NOV, as it repeatedly notes that they were qualified for comparable positions which they were offered after their termination. See Dkt. 41, pp. 26, 28. Rather, NOV simply maintains that (1) Plaintiffs are not disabled, and (2) Plaintiffs cannot demonstrate a causal link between the adverse employment decision and their actual or perceived disabilities. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 22 of 37 Page 17 of 31 a. Plaintiffs can present sufficient evidence to satisfy the first prong of the prima facie test for discrimination. In the first instance, it effectively makes no difference whether either Plaintiff actually has a “disability” as that term is defined in 42 U.S.C. § 12102(1)(A) (“a physical or mental impairment that substantially limits one or more major life activities”) because Plaintiffs were clearly “regarded as having such an impairment” as provided under 42 U.S.C. § 12102(1)(C), which satisfies the first prong of a prima facie case of discrimination in violation of the ADA. See 29 C.F.R. § 1630.2(g)(1)(iii); Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999); Steele v. Thiokol Corp., 241 F.3d 1248, 1256 (10th Cir. 2001). Regardless, both Plaintiffs testified that they have back injuries from their military service—Mr. Dunsworth (Army) and Mr. Shelton (Marines) —for which they’ve both been issued disability ratings through the Veteran’s Association. Mr. Dunsworth further testified that he was unable to hold a job for some time after the injury, which exacerbated his depression, and that he started treating his depression with prescribed medications in or about 2013. Exhibit 3, Dunsworth Depo. At 11:7-24. Mr. Shelton’s disability rating is due partly to his back injury, partly to his tinnitus, and partly to his shoulders, wrists, knees, and ankles in some percentage. Exhibit 5, Shelton Depo. At 53:11-20. A plaintiff is “regarded as disabled” under the ADA where “(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999), superseded by statute, ADA Amendments Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 23 of 37 Page 18 of 31 Act of 2008, Pub.L. No. 110–325, 122 Stat. 3553 (2008);2 See also Equal Employment Opportunity Comm'n v. BNSF Ry. Co., 853 F.3d 1150, 1155 (10th Cir. 2017). This test “recognizes ‘that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.’” Equal Employment Opportunity Comm'n v. BNSF Ry. Co., 853 F.3d 1150, 1155 (10th Cir. 2017) (quoting School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 284 (1987)). Here, Mr. Folmar testified that Andrew Lee told him about one of the Plaintiffs disclosing some medications that caused some safety concerns. Exhibit 4, Folmar Depo. at 25:7-13. Folmar further testified that he assumed, based on Lee’s statements, that both Plaintiffs had “physical issues” for which they needed to take “pain meds.” Id. at 27:13- 28:5. At that point, Folmar sent the text messages and email deconstructed at length above and terminated Plaintiffs from their employment with NOV. See Exhibits 1 & 2. There is literally no further evidence that the Court need consider in reference to this element of Plaintiffs’ cause of action. Folmar subjectively believed that both plaintiffs had some form of impairment which necessitated the use of some form of pain relief medication. Even if neither Plaintiff had any impairment, or if any actual impairment was nonlimited as far as major life activities, Folmar regarded both Plaintiffs as disabled as defined by the ADA. Even if Mr. Folmar’s post hoc reasoning that he was simply “upset” is the least bit credible, 2 Congress amended the ADA in 2008 to overrule Sutton by indicating that efforts to mitigate a plaintiff’s impairment may not be considered when determining whether a plaintiff is “disabled.” The reasoning articulated in Sutton concerning the “regarded as disabled” prong of the prima facie test for discrimination was not superseded. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 24 of 37 Page 19 of 31 this point constitutes a genuine dispute concerning a material fact which must be presented to the ultimate finder of fact. b. The second prong of the prima facie case is met showing causation between perceived disabilities and adverse employment decision. Plaintiffs both testified to events which would cause Mr. Folmar to believe that they had back injuries, had disability ratings from the VA, and were taking medications to treat pain. Dunsworth testified that he disclosed his disability rating and his prescription pain medications to the HSE supervisor Andrew Lee at his orientation. Exhibit 3, Dunsworth Depo. at 110:21-111:14. Shelton also testified that Mr. Lee asked for medications, and further that Lee overheard Shelton’s conversation with a coworker where they talked about the military, some war stories, and their disability ratings from the VA. Exhibit 5, Shelton Depo. at 61:16-13, 63:8-14, 103:7-12. While Folmar and Lee have exhibited somewhat convenient lapses in memory regarding this information, there is nevertheless admissible evidence in the record that (1) Lee overheard Shelton say he was on disability (2) that Lee then spoke to Folmar about one or both Plaintiffs’ pain medications, and (3) that Folmar interpreted Lee’s statements as indicating that both Plaintiffs were disabled. These statements provide adequate evidence that Folmar (mistakenly or otherwise) believed that both Plaintiffs suffered some form of severe impairment, and that Folmar made the decision to terminate Plaintiffs’ employment on the basis of that belief. While NOV claims that Dunsworth failed to show that he told anyone that his VA disability rating was due to a back injury sustained in the military (Dkt. 41, p. 22), this level of specificity is not required for liability under the ADA to attach. Whether Folmar knew Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 25 of 37 Page 20 of 31 or believed either Plaintiff suffered from any particular ailment or whether he simply believed Plaintiffs had some nonspecific “physical issues” is irrelevant. The record shows that Folmar believed both Plaintiffs were taking pain medication. Logically, it is reasonable to assume Folmar believed on the basis of that information that Plaintiffs suffered some physical ailment which caused them pain and necessitated the use of such medication to treat that pain. It is possible that Lee informed Folmar of Shelton and Dunsworth’s specific conditions giving rise to their VA disability ratings; it is also possible that Folmar neither knew nor cared what specific ailments Plaintiffs suffered. Liability under the ADA’s ‘regarded as’ provision does not depend on “whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(1)(C). Therefore, Folmar could have believed Plaintiffs had any sort of impairment whatsoever and it would not affect NOV’s liability for terminating their employment on that basis. The only limitation is that the perceived impairment cannot be “minor and transitory.” 42 U.S.C. § 12102(3)(B). NOV relies on this provision in citing the absence of major life activities in which Plaintiffs’ conditions actually prevent them from engaging. Dkt. 41, p. 26. However, this reliance is in error; the relevant inquiry under paragraph (3)(B) is not whether the actual impairment a plaintiffs suffers—of which the employer has no knowledge—is minor and transitory; rather, the question is whether the perceived impairment is minor and transitory. The EEOC’s interpretive guidance on the ADA contains a useful example for the proper way to approach the situation where the perceived impairment is mistaken: Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 26 of 37 Page 21 of 31 an employer that terminated an employee with an objectively “transitory and minor” hand wound, mistakenly believing it to be symptomatic of HIV infection, will nevertheless have “regarded” the employee as an individual with a disability, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not “transitory and minor.” 29 C.F.R. pt. 1630 App. § 1630.2. This doctrine is borne out by the relevant case law as well.3 The question, then, is whether NOV has presented a minor or transitory impairment which Folmar believed Plaintiffs to have, on which basis he terminated Plaintiffs’ employment. NOV has presented no such evidence, nor does such evidence exist in the record. Folmar simply believed that Plaintiffs had “physical issues,” and that they had “disabilities.” These facts alone are sufficient to satisfy the “regarded as disabled” prong of a prima facie case. NOV cites one non-binding case out of the Western District of Michigan which appears to have very similar facts as those here. Dkt. 41, p. 19, n. 106, Robuck v. Am. Axle and Mfg., 2012 WL 6151988 (W.D. Mich. Dec. 11, 2012). Without going too far into the specifics of that case, two points are saliently different: (1) the plaintiff in that case relied 3 See, e.g. Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1190 (10th Cir. 2007) (stating that in a ‘regarded-as’ suit, “a plaintiff must show that an employer has mistaken beliefs about the plaintiff's abilities: the employer must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.”) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)(internal quotation marks omitted)); Manna v. Phillips 66 Co., 304 F. Supp. 3d 1064, 1072 (N.D. Okla. 2018) (While the plaintiff admitted he was not actually impaired, the court found that “a reasonably jury could find that Phillips considered Plaintiff to be impaired”); Nevitt v. U.S. Steel Corp., 18 F. Supp. 3d 1322, 1331 (N.D. Ala. 2014) (Despite the fact that the plaintiff’s actual injury was minor or transitory, the court denied summary judgment on the basis that the perceived impairment was not minor or transitory). Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 27 of 37 Page 22 of 31 solely on his employer’s knowledge of his back condition to prove the causation prong of his prima facie case, and (2) the actual impairment the plaintiff in that case suffered was the same as that which the employer perceived, and both were admitted to be minor and transitory. Id at *4. Here, Folmar’s text message and email lend far more support on the causation prong, and NOV has failed to show that whatever impairment Folmar perceived Plaintiffs to have was minor and transitory. 2. NOV’s proffered reasoning for Plaintiffs’ termination is merely pretextual. a. The August 29th tardy was not even a motivating factor for the termination. As NOV has now offered a non-discriminatory rationale for Plaintiffs’ termination, the burden now falls to Plaintiffs to show by a preponderance of the evidence that the articulated reasoning is merely pretextual, and that the true reason was discriminatory as alleged in their complaint. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973). Pretext can be shown by “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (internal quotations and citations omitted). The ultimate question is “whether plaintiff can show that the employer's explanation was so weak, implausible, inconsistent or incoherent that a reasonable fact finder could conclude that it was not an honestly held belief but rather was subterfuge for discrimination.” Young v. Dillon Companies, Inc., 468 F.3d 1243, 1250 (10th Cir. 2006) Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 28 of 37 Page 23 of 31 NOV contends that Plaintiffs’ violation of NOV and SOS Staffing’s attendance policies by failing to report to work at the scheduled time was the true reason for their termination, and not the fact that Folmar regarded them as disabled. Dkt. 41, p. 26. NOV further states, without supporting evidence, that Plaintiffs have conceded that “the proffered reason—no call, no show . . . for the ending assignments with NOV is indeed true.” Id at p. 26-27. Plaintiffs have made no such concession. Rather, Plaintiffs have merely conceded that they were late for their scheduled shift, not that this fact was the but- for cause of their termination. In reality, there is no better evidence that NOV would not have terminated Plaintiffs’ employment on the basis of their tardiness alone than the follow-up text message Mr. Folmar sent at 11:49 am on August 29, 2013, stating: “I spoke with my boss and was hoping to talk to u guys to see if u just overslept or what’s going on. Want to try an [sic] still make this work if u didn’t find something else.” Exhibit 1, Folmar Text Message. While this is obviously not a negligence case, the doctrine of res ipsa loquiter seems especially fitting here: the thing literally speaks for itself. Just as Folmar unequivocally stated NOV’s discriminatory hiring policy, Folmar then unequivocally stated that Plaintiffs would be welcome back to work despite their violation of the company’s attendance policy, thus negating their absences as a valid nondiscriminatory basis for their termination. b. Plaintiffs can establish but-for causation for their termination, but this is not a requirement for a Title I ADA claim under existing law. NOV argues that ‘but for’ causation to prove Title I discrimination in violation of the ADA is required pursuant to Gross v. FBL Financial Svcs., Inc., 557 U.S. 167 (2009). Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 29 of 37 Page 24 of 31 Dkt. 41, p. 28. NOV then goes on to admit that ‘but for’ causation is not actually mandated in this jurisdiction, but that some neighboring circuits have applied this requirement and that the 10th Circuit has considered it. Id. (citing Doe v. Bd. of Cty. Comm'rs of Payne Cty., Okla., 613 F. App'x 743, 747 (10th Cir. 2015)). While the Supreme Court in Gross held that a plaintiff alleging age discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. must prove but-for causation, that framework was not extended to all cases of employment discrimination ipso facto.4 Rather the correct burden of causation that a Title I ADA discrimination plaintiff must show is that the “disability was a determining factor in [the employer’s] decision to terminate her.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 878 (10th Cir. 2004).5 Thus, even if the employer proffers other reasons it may have terminated the employee, it is not the employee’s burden to show that that the alleged discrimination was the sole cause of the termination; rather, the employee merely needs to show that that the discriminatory reason was determinative. See Carter v. Pathfinder Energy Services, Inc., 662 F.3d 1134 (10th Cir. 2011). 4 See e.g. Cheryl L. Anderson, Unification of Standards in Discrimination Law: The Conundrum of Causation and Reasonable Accommodation Under the ADA, 82 Miss. L.J. 67, 68 (2013) (causation standards under Title VII, the ADEA, the ADA, and the ADAAA); Gross v. FBL Financial Svcs., Inc., 557 U.S. 167, 174, 189 (2009) (acknowledging its holding does not affect the “motivating factor” test for Title VII). 5 See also Morgan v. Hilti, Inc., 108 F.3d 1319, 1323-1324 (10th Cir. 1997), (holding that “this burden is not onerous . . . [t]he plaintiff must present evidence that, if the trier of fact finds it credible, and the employer remains silent, she would be entitled to judgment as a matter of law.”). Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 30 of 37 Page 25 of 31 The difference between “determinative” and “but-for” causation in mixed-motive cases can be demonstrated through principles of predicate logic: under the determinative test, if the discriminatory reason is a sufficient cause of the termination, then the plaintiff has met her burden, even if the non-discriminatory reason is also a sufficient cause. In that sense the plaintiff prevails even if her termination was ‘over-determined’ by having two concurrent sufficient causes. But-for causation, on the other hand, requires the plaintiff to show that the discriminatory reason is sufficient and necessary to cause the termination. In other words, the plaintiff must show that the employer would not have terminated her for the non-discriminatory reason alone in order to meet her burden. These technical points aside, Plaintiffs can satisfy their burden under either test. Folmar’s follow-up text message asking Plaintiffs to come back shows that NOV was not going to terminate them on the basis of a single absence. Exhibit 1, Folmar Text Messages. Further, Folmar testified that it was not usual practice to terminate an employee for a single tardy. Exhibit 4, Folmar Depo. at 35:1-5. While NOV’s company policy requires employees to call in if they are going to be absent or late, it contains no provision establishing that a single instance of failure to do so would be grounds for termination. Exhibit 6, NOV attendance policy. Under these facts, Plaintiffs have presented sufficient evidence to establish by a preponderance standard that their perceived disabilities were both the determinative and the but-for cause of their terminations. III. Plaintiffs Are Able To Recover Damages As A Matter Of Law. A. Plaintiffs Justifiably Rejected Folmar’s Alleged Offer of Reinstatement. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 31 of 37 Page 26 of 31 Ordinarily, where a defendant-employer makes an unconditional offer of reinstatement to the plaintiff-employee, the accrual of any compensatory damages award is tolled as of the date of the offer. See Ford Motor Co. v. EEOC, 458 U.S. 219 (1982). In considering whether an offer of reinstatement tolls a plaintiff’s backpay damages, courts must “consider the circumstances under which the offer was made or rejected, including the terms of the offer and the reasons for refusal.” Giandonato v. Sybron Corp., 804 F.2d 120, 124 (10th Cir. 1986). An employee may rebut an employer’s affirmative defense of failure to mitigate by presenting evidence that the work environment had become hostile to the point that no reasonable person would accept such an offer.6 It is a factual question whether Folmar’s offer to “work things out” was actually an unconditional offer of reinstatement. “Working things out” could mean a number of things from reassignment to different positions, payment of money, finding them alternative employment, etc. Further, Plaintiffs both testified that Folmar’s text message had such an emotionally charged impact on them, and so completely annihilated their trust in the company, that they could not possibly accept the supposed offer of reinstatement. Exhibit 5, Shelton Depo. at 78:14-81:16; Exhibit 3, Dunsworth Depo. at 207:8-19, 223:21-25. Shelton, for his part, testified that he was “blindingly upset” by Folmar’s first message. Id. at 79:22. Folmar did not merely state that he did not want people with disabilities working for him; he said that NOV was not a fan of hiring people with disabilities. At least from 6 See, e.g., E.E.O.C. v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1173 (10th Cir. 1985) (finding that “[r]einstatement may not be appropriate . . . when the employer has exhibited such extreme hostility that, as a practical matter, a productive and amicable working relationship would be impossible.”). Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 32 of 37 Page 27 of 31 Plaintiffs’ perspective, this was not a case of a single individual with toxic opinions that they could report to a manager—this was the head of the plant stating in no uncertain terms that the company they were working for did not want them there. Interestingly, NOV first claims that Plaintiffs cannot recover back pay damages at all, it then contradicts this assertion by conceding that Plaintiffs are, at the very least, entitled to “3 hours and 19 minutes” of back pay. Dkt. 41, p. 23. Even in cases where an employee has unreasonably refused a reinstatement offer, this fact does not eliminate her damages, but merely tolls them through the date that the offer was rejected.7 At a minimum, the question of whether Plaintiffs’ refusal of NOV’s offer of reinstatement was reasonable is a factual question that should be submitted to the jury. B. Plaintiffs Made Reasonable and Diligent Searches for Alternative Employment Such That They Have Not Failed to Mitigate Their Damages. Unlawfully terminated employees are generally required to make reasonable efforts to mitigate their damages by seeking comparable alternative employment following the termination. Equal Employment Opportunity Comm'n v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980). A plaintiff “is required to make only reasonable exertions to mitigate damages and is not held to the highest standards of diligence. It does not compel him to be successful in mitigation. It requires only an honest good faith effort.” Id. (quoting United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir. 1979). The ultimate burden to prove that an employee has failed to mitigate his damages by seeking comparable 7 See also Albert v. Smith’s Food & Drug Centers, Inc., 356 F.3d 1242, 1254 (finding even though the plaintiff failed to mitigate her damages by refusing an unconditional offer of re- employment, she was entitled to back pay). Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 33 of 37 Page 28 of 31 employment falls to the employer. Id. Specifically, the employer must show “(1) that the damages suffered by plaintiff could have been avoided, i.e. that there were suitable positions available which plaintiff could have discovered and for which he was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position.” Id. (quoting Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir. 1978)). Here, Plaintiffs both testified that they refused to consider SOS Staffing’s arrangement for them to tour a facility at Cameron International. Exhibit 3, Dunsworth Depo. at 210-211; Exhibit 5, Shelton Depo. at 112-113. While NOV construes this arrangement as an offer of employment, it offers no supporting evidence that Cameron International was even hiring for positions for which Plaintiffs would be eligible, much less that Cameron actually offered either of them a job at that facility. There is no evidence of what positions Plaintiffs may have filled, what their rate of pay might have been, or whether the allegedly available positions were in any way comparable to the positions Plaintiffs held at NOV. Further, Plaintiffs both testified that they were unsure who to trust following the incident with Mr. Folmar and decided to go a different direction. The fact is that both Plaintiffs found alternative employment within a matter of months—Dunsworth began working at Enerfin Resources Co. in March of 2014 and Shelton found work with Plumbing Solutions in October of 2013. Exhibit 3, Dunsworth Depo. at 50; Exhibit 5, Shelton Depo. at 36. NOV has simply failed to meet its burden to show that Plaintiffs have failed to mitigate their damages by not agreeing to go on a tour. C. Punitive Damages are Warranted for NOV’s Knowing and Intentional Violation of the ADA. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 34 of 37 Page 29 of 31 42 U.S.C.§ 1981a provides for punitive damages in cases of employment discrimination “if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Courts have recognized that the rules of agency apply to employment discrimination cases, holding the company liable where the discriminatory action was taken by an individual employed in a managerial capacity and acting within the scope of his employment. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 527 (1999); Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1263 (10th Cir. 1995). NOV apparently concedes that these conditions apply here, arguing only that the existence of a written policy against discrimination protects the company against liability for punitive damages. Because Folmar has created a genuine issue of material fact regarding his intent in sending Plaintiffs the text message terminating their employment, the issue of whether he acted with malice and intent is properly left for the jury. See Seamons v. Snow, 206 F.3d 1021, 1028 (10th Cir. 2000) (finding that summary judgment is especially inappropriate where “a necessary element of the claim for relief presents an inquiry into the state of mind of one or more of the parties.”). As evidenced by NOV’s extensive arguments regarding its dissemination of non-discrimination policies, it is simply not tenable for Folmar to claim that he was not aware at the time of Plaintiffs’ termination that he could be acting in violation of federal law. See E.E.O.C. v. Heartway Corp., 466 F.3d 1156, 1169 (10th Cir. 2006) (reversing summary judgment on the issue of punitive damages where employer was found to have knowledge of its obligations under the ADA). Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 35 of 37 Page 30 of 31 Plaintiffs have presented sufficient evidence from which a jury could conclude that, despite the existence of written policies against discrimination, NOV’s de facto customs and practices discriminate against individuals with disabilities. Twice Folmar stated that NOV prefers not to hire people with disabilities. A jury could reasonably find that these statements recount a company-wide practice of discrimination against the disabled, despite the existence of written policies maintained to insulate itself against liability in exactly this sort of situation. CONCLUSION Terminating an employee solely because that individual takes such medication on an as needed basis without offering reasonable accommodations is an obvious violation of the ADA. Folmar admits that he assumed both Plaintiffs had “physical issues” based on Mr. Lee’s disclosure of the pain medication Mr. Dunsworth was asked to present. Whether or not Plaintiffs are actually disabled as defined by ADA is beside the point; Folmar plainly perceived and regarded Plaintiffs as disabled. This case falls squarely within the type of conduct the regarded-as provision of the ADA is intended to prevent. Congress added this language in order to address “unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities [which] are often just as disabling as actual impairments, and [its] corresponding desire to prohibit discrimination founded on such perceptions.” 29 C.F.R. pt. 1630, App. § 1630.2(l) (quoting 2008 Senate Statement of Managers at 9; 2008 House Judiciary Committee Report at 17). Plaintiffs therefore request that the Court deny NOV’s Motion for Summary Judgment. Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 36 of 37 Page 31 of 31 Respectfully submitted, _________________________________ RICHARD R. RICE, OBA #15129 ORION A. STRAND, OBA #33279 Rice Law Firm 1401 S. Douglas Blvd., Ste. A Midwest City, Oklahoma 73130 (405) 732-6000 / 737-7446 – fax Rick@RiceLawFirm.net Orion@RiceLawFirm.net COUNSEL FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that on the 12th day of October, 2018, I delivered a true and accurate copy of the above and forgoing instrument, to all parties of record via the court’s ECF system, including but not limited to: Brandon D. Kemp Christopher E. Moore Javier Jalice William H. Payne, IV COUNSEL FOR DEFENDANT _________________________________ Case 5:17-cv-00895-D Document 47 Filed 10/12/18 Page 37 of 37