# Bhatti v. SSM Health Care of Oklahoma Inc

> District Court, W.D. Oklahoma · January 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10388737

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** January 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

EDWIN BHATTI, )
)
Plaintiff, )
)
-vs- ) Case No. CIV-19-0655-F
)
SSM HEALTH CARE OF )
OKLAHOMA, INC., d/b/a SAINT )
ANTHONY HOSPITAL, )
)
Defendant. )

ORDER
This action brings state and federal discrimination claims arising out of
plaintiff Edwin Bhatti’s employment as a security officer for the defendant, SSM
Health Care of Oklahoma, Inc. d/b/a Saint Anthony Hospital (St. Anthony’s).
Defendant moves for summary judgment on all claims. Doc. no. 48. Plaintiff
responded, objecting to summary judgment. Doc. no. 51. Defendant filed a reply
brief. Doc. no. 54. Plaintiff filed a sur-reply brief. Doc. no. 57.
The motion will be granted for the reasons stated below.1
I. Standards
Under Rule 56, Fed. R. Civ. P., summary judgment shall be granted if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. The moving party has the burden of
showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

1 In light of this result, plaintiff’s motion for an extension of time (doc. no. 58) is STRICKEN as
moot.
477 U.S. 317, 325 (1986). A genuine issue of material fact exists when “there is
sufficient evidence favoring the non-moving party for a jury to return a verdict for
that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
determining whether a genuine issue of a material fact exists, the evidence is to be
taken in the light most favorable to the non-moving party. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970). All reasonable inferences to be drawn from the
undisputed facts are to be determined in a light most favorable to the non-movant.
United States v. Agri Services, Inc., 81 F.3d 1002, 1005 (10th Cir. 1996).
Once the moving party has met its burden, the opposing party must come
forward with specific evidence, not mere allegations or denials, demonstrating that
there is a genuine issue for trial. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.
1983). The mere existence of a scintilla of evidence in support of the plaintiff’s
position is insufficient to avoid a properly supported summary judgment motion;
there must be evidence on which the jury could reasonably find for the plaintiff.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
II. The Complaint
Plaintiff alleges discrimination and retaliation claims based on race, color,
national origin, age and disability. The claims are brought under Title VII of the
Civil Rights Act (Title VII); the Americans with Disabilities Act, as amended by the
ADA Amendments Act of 2008 (ADA); the Age Discrimination in Employment Act
(ADEA); 42 U.S.C. § 1981; and the Oklahoma Anti-Discrimination Act (OADA).
Doc. no.1, ¶ 3.
The claims relate to plaintiff’s rate of pay when hired; to defendant’s failure
to promote plaintiff to two supervisory positions identified by the plaintiff; and to
defendant’s decision to place plaintiff on administrative leave and, ultimately, to
terminate plaintiff’s employment.
III. Undisputed Facts
The following facts are undisputed.2 (Additional, undisputed facts are referred
to in other parts of this order.)
-- Plaintiff Edwin Bhatti was born in Pakistan, is of Asian descent, is a U.S.
citizen, is over the age of forty, and has a speech impediment which causes him to
stutter.
-- On May 31, 2016, Mr. Bhatti was hired by St. Anthony’s as a safety and
security officer. At the time of hire, he was credited with two years of prior, relevant
experience, and was offered a pay rate of $10.66 per hour, which was $.61 over the
minimum rate of pay for the position. Defendant’s Undisputed Material Fact (UMF)
No. 1.
-- On November 20, 2017, Mr. Bhatti was charged with felony child
endangerment, and misdemeanor driving under the influence of alcohol (DUI). On
November 30, 2017, defendant placed Mr. Bhatti on administrative leave pending
the outcome of the charges. Following resolution of the charges in 2018, restrictions
were placed on plaintiff’s driver’s license. Defendant’s UMF Nos. 2-4.
-- By letter dated March 19, 2018, Cheryl McConnell (St. Anthony’s human
resources director) advised Mr. Bhatti as follows.
On November 30, you were suspended from work pending
the outcome of charges against you for an auto accident

2 At times, this order finds facts undisputed although plaintiff purports to dispute them. The court
may do so if plaintiff’s response to a proposed undisputed fact does not adequately identify
disputing evidence. LCvR56.1(d)-(e). For example, in some instances plaintiff cites his 219-page
deposition without identifying any passages. In other instances plaintiff identifies specific
evidence, but that evidence is not responsive to the fact in question. And in some instances the
evidence cited by plaintiff is not based on first-hand information or is otherwise speculative and
not admissible. See, Adams v. American Guarantee and Liability Ins. Co., 233 F.3d 1242, 1246
(10th Cir. 2000) (“In order to survive summary judgment, the content of the evidence that the
nonmoving party points to must be admissible”; hearsay testimony that would be inadmissible at
trial cannot be used to defeat a motion for summary judgment).
that occurred November 8, wherein you were allegedly
driving under the influence of alcohol.
Currently your driver’s license contains restrictions that
cause your license to not meet hospital standards.
Therefore, you no longer meet the minimum qualifications
for the position of security officer. Attached is a copy of
your job description for your reference.
Because you do not meet the minimum qualification for
the position, we will terminate your employment. If you
have additional information that will enable us to
reconsider this action, please provide it to me by Friday
March 23. This information will be considered but it is no
guarantee your employment will not be terminated. If I do
not receive adequate information preventing termination
of employment, your termination will be effective March
23.
Doc. no. 48-7, cited in support of Defendant’s UMF No. 4.
-- On March 23, 2018, St. Anthony’s terminated Mr. Bhatti’s employment.
Defendant’s UMF No. 4.
IV. Discussion
Defendant challenges all of plaintiff’s claims, making arguments of two types:
arguments related to the timing of plaintiff’s charge filed with the Equal
Employment Opportunity Commission (EEOC); and arguments challenging the
sufficiency of the evidence to support plaintiff’s claims.
A. Timing of the EEOC Charge
Defendant argues that plaintiff lacks standing to bring claims under the
OADA because that Act requires plaintiff to file a charge of discrimination within
180 days of the alleged discrimination or retaliation.3 It is undisputed that plaintiff

3 Per 25 O.S. Supp. 2013 §1350(B), for the aggrieved party to have standing in a court of law, a
charge must be filed within 180 days of the last date of alleged discrimination or retaliation.
did not file his charge of discrimination with the EEOC within 180 days of the
alleged discriminatory or retaliatory conduct, as required by the OADA.4 Moreover,
plaintiff did not respond to defendant’s lack of standing argument. The court will
grant defendant’s motion with respect to the OADA claims, which will be dismissed
for lack of standing, which is a jurisdictional requirement.
Next, defendant argues it is entitled to summary judgment on claims alleged
under Title VII, the ADA and the ADEA (all of plaintiff’s federal claims except the
§1981 claim) because these claims were not the subject of a charge filed with the
EEOC within 300 days of the alleged unlawful employment practices. It is
undisputed that the EEOC charge was not filed within 300 days of the alleged
unlawful employment practices. The 300-day period is not jurisdictional, however,
and plaintiff has asserted an estoppel argument to avoid his limitations problem.
Plaintiff has identified evidence intended to show that the EEOC investigator
he met with led him to believe he had a year from the date of his interview within
which to file a charge. Defendant counters that plaintiff’s estoppel argument is
foreclosed because undisputed language in an EEOC form which plaintiff signed on
July 20, 2018, states as follows above plaintiff’s and the EEOC investigator’s
signatures: “I UNDERSTAND THAT IF I DECIDE TO FILE A CHARGE IN
THIS MATTER, I MUST DO SO WITHIN 300 DAYS OF THE DATE OF
ALLEGED DISCRIMINATION.” Doc. no. 48-14.
Equitable tolling of the EEOC filing period may be appropriate where a
plaintiff has been lulled into inaction by the federal agency. Gray v. Phillips
Petroleum Co., 858 F.2d 610, 615-16 (10th Cir. 1988). Plaintiff has identified
passages in his deposition testimony, and has also submitted an affidavit, which

4 The EEOC charge shows March 23, 2018, as the latest date on which discrimination took place.
The charge was signed by Mr. Bhatti over a year later, on March 29, 2019. Doc. no. 48-13.
support his arguments for estoppel based on the conduct of the EEOC investigator.
Despite the clear language in the form signed by the plaintiff, there is a genuine issue
as to whether estoppel should bar defendant from relying on the 300-day limitations
period. Accordingly, defendant’s limitations argument is rejected as a basis for
summary judgment on claims alleged under Title VII, the ADA and the ADEA.
B. Challenges to the Sufficiency of Plaintiff’s Evidence
Given the court’s ruling that the OADA claims will be dismissed for lack of
standing, part B of this order addresses only plaintiff’s federal claims.
1. Race, National Origin, Color and Age Discrimination Claims
Defendant argues that plaintiff’s race, national origin, color and age
discrimination claims brought under Title VII, the ADEA and § 1981, fail for lack
of supporting evidence. These claims are based on the following alleged adverse
employment actions: 1) defendant’s setting of plaintiff’s pay rate, when hired, at
$10.66 per hour, which plaintiff claims was less than the rate of pay for similarly
situated co-workers; 2) defendant’s failure to promote plaintiff to two supervisory
positions identified by the plaintiff; and 3) defendant’s decision to place plaintiff on
administrative leave and, ultimately, defendant’s decision to terminate plaintiff’s
employment. (Plaintiff’s hostile environment claims are discussed in another part
of this order.)
Plaintiff has not presented direct evidence of discrimination with respect to
these or any other claims alleged in this action, so the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. Under that
framework, when challenged at the summary judgment stage, plaintiff must raise a
genuine issue of material fact with respect to each element of his prima facie case;
if he does so, the burden shifts to the defendant to offer a legitimate,
non-discriminatory reason for its employment decision; if defendant does so, the
burden shifts back to the plaintiff to show there is a genuine issue of material fact
regarding pretext, i.e. whether defendant’s proffered reasons for the challenged
action are unworthy of belief. Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir.
2019).5
Of the adverse actions complained of (rate of pay, failure to promote, and
placement on leave followed by termination), defendant argues that plaintiff has
identified no evidence to support a prima facie case with respect to only the failure
to promote claim.
A prima facie case of failure to promote requires, among other things,
evidence showing plaintiff applied and was qualified for the position involved.
Jaramillo v. Colorado Judicial Dept., 427 F.3d 1303, 1306 (10th Cir. 2005). Plaintiff
complains that Kaylie Graham was promoted to morning supervisor and that Justin
Wright was hired as a parking lot supervisor. Doc. no. 48-17 (plaintiff’s answer to
interrogatory no. 4). It is undisputed, however, that plaintiff did not apply for either
of the supervisory positions into which Graham or Wright were promoted.
Defendant’s UMF No. 11. Furthermore, to the extent plaintiff contends it would
have been futile to apply for these positions, he has identified no evidence to support
that contention. See, Bird v. Regents of New Mexico State University, 619 Fed.
Appx. 733, 763 (10th Cir. 2015) (plaintiff failed to establish a prima facie case, and
failed to show pretext on appeal, because she produced no facts to show her
application for promotion to full professor would have been futile without the
support of the chairman of the department), unpublished.
Because plaintiff has not identified evidence to support one of the prima facie
elements of a failure to promote claim which is based on race, color, national origin
or age discrimination, defendant is entitled to summary judgment on such claims.

5 McDonnell Douglas was a Title VII case, but its framework also applies to age discrimination
cases, Jones v. Oklahoma City Public Schools, 617 F.3d 1273, 1278 (10th Cir. 2010), and to § 1981
claims. Perry v. Woodward, 199 F.3d 1126, 1135 (10th Cir. 1999).
Moving on, at the second step of McDonnell Douglas analysis, defendant
must identify evidence to show that its decision regarding plaintiff’s initial rate of
pay, its decision not to promote plaintiff to the supervisory jobs plaintiff has
identified, and its decisions to place plaintiff on administrative leave and then to
terminate plaintiff’s employment, were based on legitimate, non-discriminatory
reasons.
With respect to the rate of pay claim, defendant has identified evidence that
plaintiff’s rate of pay at the time he was hired was based on his prior, relevant work
experience.
With respect to the failure to promote claim, defendant has identified evidence
that defendant did not consider any individual for a supervisory position in the safety
and security department unless the individual applied for an open position using
defendant’s application tracking system.
With respect to the decisions to place plaintiff on administrative leave and to
terminate plaintiff’s employment, defendant has identified evidence that plaintiff
was placed on leave due to pending criminal charges of felony child endangerment
and misdemeanor DUI; that as a result, restrictions were placed on plaintiff’s
driver’s license; that as a further result, plaintiff no longer met the minimum
qualifications for the security officer position and his employment was terminated.
Defendant has identified evidence of legitimate, non-discriminatory reasons
for the complained of adverse employment actions. Accordingly, the burden shifts
back to plaintiff to establish a genuine issue of fact with respect to pretext. As
explained below, plaintiff has not done so.
Regarding the rate of pay issue, it is undisputed that plaintiff’s rate of pay
when hired was based on his years of prior, relevant experience (two years), because
of which he was offered a pay rate of $10.66 per hour, which was over the minimum
rate of pay for that position. Defendant’s UMF No. 1. Plaintiff purports to dispute
defendant’s UMF No. 1, citing parts of his deposition testimony. In the cited
testimony, plaintiff identifies “an officer” who he eventually identified as Brian
Blasingame. Doc. no. 51-5, p. 59 (spelled “Blassingame” in the deposition
transcript). Plaintiff testified that Blasingame told plaintiff that Blasingame was
hired with no experience, and that he was paid “like, twelve fifty.” Id. at pp. 59-60.
Plaintiff cannot rely on this testimony, however, because it is hearsay with respect
to Blasingame’s rate of pay and the level of Blasingame’s relevant experience when
hired.
Moreover, defendant has presented evidence that Blasingame was hired with
four years and three months of prior, relevant experience and was therefore paid an
initial rate of $11.31 per hour. Defendant’s UMF No. 13. Plaintiff purports to
dispute UMF No. 13, citing his own deposition testimony, in which he explained he
put Blasingame on the witness list because “he was the officer with no experience,
nothing, who was…getting paid more than me.” Doc. no. 51-5, p. 113. But again,
plaintiff has not identified any non-speculative and non-hearsay basis for this
testimony. In short, plaintiff has not identified more than a scintilla of evidence to
show that Blasingame was paid at a higher rate than plaintiff was paid despite
(supposedly) having less relevant experience.
To the extent plaintiff may have intended to rely on the pay of Trenton Roth,
undisputed evidence shows Roth took a pay-cut to become a safety and security
officer at a rate of $10.65 per hour. Defendant’s UMF No. 14. In addition,
undisputed evidence shows that Cody Boggess (Caucasian), who defendant credited
with two years of relevant experience (the same number of years defendant credited
plaintiff with) was offered a pay rate of $10.66 per hour, the same as plaintiff’s rate.
Defendant’s UMF No. 15.
Plaintiff has not carried his burden to identify evidence of pretext with respect
to his rate of pay, entitling defendant to summary judgment on this claim.
Moving on, defendant argues that plaintiff cannot show pretext regarding the
decision not to promote plaintiff to the positions Kaylie Graham and Justin Wright
were promoted to (see, plaintiff’s answer to interrogatory no. 4, doc. no. 48-17,
identifying these two individuals), because it is undisputed: that plaintiff did not
apply for those positions; and that defendant did not consider anyone for a
supervisory position in the safety and security department unless the individual
submitted an application for an open position using defendant’s applicant tracking
system. Defendant’s UMF No. 10-11. The court agrees these facts are undisputed
and that plaintiff has not identified evidence of pretext with respect to the failure to
promote claim.
With respect to placing plaintiff on administrative leave and ultimately
terminating his employment, defendant argues plaintiff cannot show pretext
because, among other reasons, plaintiff cannot identify a comparator who was
treated more favorably in similar circumstances. Plaintiff’s response brief does not
contend otherwise. Instead, to show pretext, plaintiff argues that despite restrictions
on his driver’s license, defendant knew plaintiff could drive for work-related
purposes, and that to be able to work, plaintiff was only required to provide proof
that he could drive as necessary for work. See, e.g., doc. no. 51, pp. 13-14; doc. no.
57, p. 4. Plaintiff, however, has not identified a genuine fact issue regarding these
contentions.6 Plaintiff has not demonstrated a genuine fact issue with respect to his
argument that defendant’s reasons for putting plaintiff on leave, and ultimately
terminating plaintiff’s employment, were pretextual.

6 For example, plaintiff’s sur-reply brief (doc. no. 57, p. 4) cites plaintiff’s affidavit (doc. no. 51-
2) and a letter from the Department of Public Safety regarding plaintiff’s limited driving privileges.
Doc. no. 51-6. But these documents do not indicate that plaintiff was told he could return to work
even if driving restrictions remained on his license. In addition, undisputed evidence shows that
defendant asked plaintiff whether restrictions had been “COMPLETELY” removed from his
driver’s license. Doc. no. 54-1 (email of 3/19/18).
Plaintiff also argues that pretext is shown because defendant knew about, but
failed to correct, discrimination in the workplace. Doc. no. 51, p. 13. This contention
in plaintiff’s brief is not followed by a citation to evidence, however, the court
believes plaintiff intends to rely on the same evidence that he cites to support his
hostile environment claims. Accordingly, the court will address that evidence in
some detail.
The record includes claims by plaintiff that another safety and security officer,
Kenneth Mosier, used slurs. These slurs are described in plaintiff’s written statement
to the EEOC investigator. Doc. no. 51-4, p. 2 of 6.7 There, plaintiff states that a
co-worker, Shawna Charley, told plaintiff that Mosier “always says”… “[t]his Sand
*igger, Camel Jockie [sic], stuttering mother *ucker needs to go back to his country
from where he came.” Id. Thus, in his EEOC statement, plaintiff does not claim to
have first-hand knowledge of any slurs by Mosier. Plaintiff’s supplemental answer
to interrogatory no. 3 suffers from the same lack of first-hand information. Doc. no.
48-15, p. 2. Plaintiff’s deposition testimony is the same. There, plaintiff clearly
testified that Mosier did not make the slurs directly to plaintiff’s face. Doc. no. 48-4,
p. 77.8 Plaintiff was asked, “[A]re you alleging that Officer Mosier ever said these
things directly to your face?” Plaintiff answered, “No, because he did not.” Id.
Moreover, what is most relevant to plaintiff’s pretext argument is not whether
slurs occurred, but whether defendant knew that Mosier had uttered slurs but did
nothing to correct or address that situation. Plaintiff’s EEOC statement indicates that

7 Plaintiff states that this written statement was given to the EEOC during his July 2018 meeting
with the investigator. Doc. no. 51, p. 21.
8 Plaintiff’s affidavit seeks to avoid the problem created by his lack of first-hand knowledge about
Mosier’s slurs. There, plaintiff states, “I was told to ‘go back to where he [sic] came from.’” Doc.
no. 51-2, ¶ 14. The affidavit also states that slurs “were told to Plaintiff repeatedly….” Id. at ¶ 21.
To the extent these affidavit statements are intended to show that slurs were stated to plaintiff
personally, they are merely conclusory and insufficient when measured by the record as a whole.
plaintiff relayed what Charley had told plaintiff that Mosier had said to two night
supervisors and to McConnell (in human resources). Plaintiff’s EEOC statement
indicates that McConnell told plaintiff she would see what she could do, but nothing
was done to Mosier. Plaintiff, however, does not explain or present evidence to
show how he could conceivably have first-hand knowledge about what the night
supervisors or McConnell did or did not do in response to the second-hand
information plaintiff claims he gave them regarding Mosier’s slurs.
Plaintiff has not identified more than a scintilla of evidence to show pretext.
In summary (and holding aside, for now, plaintiff’s hostile environment
claims), plaintiff’s claims of race, national origin, color and age discrimination fail
because plaintiff has not identified evidence of pretext. The failure to promote claim
also fails for lack of evidence to support a prima facie case.
2. Disability Discrimination Claims
Next the court considers the sufficiency of the evidence to support plaintiff’s
disability discrimination claims. The complaint alleges that plaintiff’s stuttering is
a disability and that defendant discriminated against him based on this “known
disability.”9 Doc. no. 1, ¶¶ 7, 43. Plaintiff alleges that because of his stutter,
defendant took the same adverse actions which have already been discussed (related
to plaintiff’s rate of pay, the failure to promote, and placing plaintiff on leave
followed by termination of his employment).
Like the claims already discussed, the disability claims are analyzed under the
McDonnell Douglas framework. Dewitt v. Southwestern Bell Telephone Co., 845

9 Although plaintiff’s response brief makes passing reference to his being “regarded as” disabled
(doc. 51, p. 16), no “regarded as” disability claim is alleged. In plaintiff’s sur-reply brief, he argues
that the joint status report refers to “disability discrimination,” a term he contends is broad enough
to include a “regarded as” claim. The joint status report does not amend the pleadings. In addition,
nothing in the joint status report put defendant on notice that plaintiff intended to allege a “regarded
as” claim.
F.3d 1299,1306-07 (10th Cir. 2017). To state a prima facie case of disability
discrimination, plaintiff must demonstrate that there is a genuine issue of fact with
respect to, among other things, his contention that he is disabled within the meaning
of the ADA. Lincoln v BNSF Railway Co., 900 F.3d 1166, 1192 (10th Cir. 2018).
To the extent relevant here, the ADA defines disability as “a physical or
mental impairment that substantially limits one or more major life activities of such
individual.” 42 U.S.C. §12102(1)(A). Determining whether a particular impairment
substantially limits a major life activity requires an individualized assessment. 29
C.F.R. §1630.2(j)(iv). Courts have held that when considering discrimination claims
brought by individuals who stutter, plaintiff must show that the stutter substantially
limits a major life activity.10 Plaintiff does not contend that the law is otherwise.
Instead, he contends his stutter limits his major life activity of speaking and
communicating. Doc. no. 51, p. 15. That contention, however, is not followed by a
citation to any evidence.
Plaintiff’s response to defendant’s UMF No. 8 is also relevant. There,
plaintiff states that his stutter impacts his day-to-day activities including speaking
and communication. In support of that response, plaintiff cites his deposition
testimony, in which he testified that words are sometimes hard for him to say.
Deposition, doc. no. 51-5, p.32. Defendant’s counsel then asked whether “stuttering,
in terms of its impact [on] day-to-day [activities], caused [plaintiff] to not engage in

10 See, e.g., Ripple v. Olympic Steel, Inc., 2014 WL 509200, *1 (M.D. Pa. Feb. 10, 2014) (an
impairment qualifies as a disability under the ADA if it substantially limits an individual’s major
life activity; plaintiff’s testimony indicated he could speak understandably; he testified that his
stutter did not affect his job performance; he had not submitted medical evidence regarding his
stutter and did not claim his stutter impacted other aspects of his life; based on undisputed facts,
plaintiff’s stutter did not qualify as a disability under the ADA); Bates v. Wisconsin Dept. of
Workforce Dev, 636 F. Supp. 2d 797, 809 (W.D. Wisc. 2009) (no evidence that plaintiff’s
stuttering substantially limited any major life activity).
certain activities?” Plaintiff answered, “No, sir.” Id. Counsel asked whether
stuttering impacted plaintiff’s ability to work. Plaintiff answered, “No, sir.” Id. at
p. 33. Counsel asked whether stuttering impacted plaintiff’s ability to do his job at
Saint Anthony’s. Again, plaintiff answered, “No, sir.” Id. Plaintiff also testified
that he had never requested an accommodation related to his stuttering. Id.
Plaintiff has not identified evidence that his stuttering substantially limits a
major life activity. Accordingly, plaintiff has not identified evidence of a prima facie
case of disability discrimination, and defendant is entitled to summary judgment on
the disability claims.
In addition, the court’s analysis at the second and third step of the McDonnell
Douglas analysis is the same with respect to the disability discrimination claims as
it was with respect to plaintiff’s other discrimination claims. In other words, even if
plaintiff had identified evidence of a prima facie case of disability discrimination,
defendant has offered legitimate, non-discriminatory reasons for the complained of
adverse employment actions, and plaintiff has not shown that there is a genuine issue
regarding pretext. For this reason also, defendant is entitled to summary judgment
on the disability discrimination claims.
3. Retaliation Claims
Plaintiff alleges that defendant retaliated against him when defendant set his
initial rate of pay, failed to promote plaintiff to the supervisory positions he has
identified, and when defendant placed plaintiff on administrative leave. Doc. no. 1,
¶ 14 (alleging these adverse employment actions were retaliatory and saying nothing
about any contention that the termination of plaintiff’s employment was
retaliatory).11

11 Alternatively, if the complaint should be construed as alleging that plaintiff’s termination was
retaliatory, the evidence would not support such a claim.
The McDonnell Douglas framework applies to the retaliation claims. Singh
v. Cordle, 936 F.3d 1022, 1042 (10th Cir. 2019) (Title VII); Salemi v. Colorado
Public Employees’ Retirement Assoc., 747 Fed. Appx. 675, 697 (10th Cir. 2018)
(§1981); Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir. 2008)
(ADEA); and Proctor v. United Parcel Service, 502 F.3d 1200, 1207-1208 (10th Cir.
2007) (ADA).
To establish a prima facie case of retaliation, plaintiff must show 1) that he
engaged in protected opposition to discrimination; 2) that defendant took action
against him which a reasonable person would have found materially adverse; and 3)
that a causal connection existed between the protected activity and the materially
adverse action. Singh, 936 F.3d at 1042. Defendant argues plaintiff has not
identified evidence to support a prima facie case of retaliation with respect to
plaintiff’s initial rate of pay or the failure to promote claim.
With respect to the retaliatory rate of pay claim, defendant argues there is no
evidence of a causal connection (the third prima facie element) because plaintiff’s
initial rate of pay was established at the time he was hired, well before any protected
activity occurred. Plaintiff was hired on May 31, 2016. Defendant’s UMF No. 1.
Accordingly, plaintiff’s initial rate of pay, $10.66 per hour, was established at that
time. The claimed protected activity is plaintiff’s alleged reporting, in 2017,12 of
slurs by Mosier. Doc. no. 1, ¶¶ 10, 11 (alleging adverse treatment after plaintiff
complained about comments made by Mosier). Thus, plaintiff’s rate of pay was
established before the protected activity occurred. This sequence of events defeats
any causal connection between plaintiff’s rate of pay and his protected activity,
entitling defendant to summary judgment on this retaliation claim.

12 Per plaintiff’s EEOC statement, Mosier was hired in 2017; plaintiff heard from Charley that
Mosier had used slurs; plaintiff relayed this information to McConnell; no one did anything to
Mosier “from June till I was there till November 30th, 2017.” Doc. no. 48-12, p.2.
With respect to the claim that plaintiff was not promoted due to retaliation,
plaintiff has not identified evidence to support a prima facie case because it is
undisputed that plaintiff did not apply for the supervisory positions in question, i.e.
the positions to which Graham and Wright were promoted. Stover v. Martinez, 382
F.3d 1064, 1072 (10th Cir. 2004) (“In order for a plaintiff to assert that her employer
retaliated against her by failing to hire, rehire, or promote her, that employee must
have applied for the position she was denied.”). Failure to apply defeats any claim
that plaintiff suffered an adverse employment action at the hands of his employer
(the second prima facie element). Failure to apply also breaks any asserted causal
relationship between the alleged retaliation and the failure to promote (the third
prima facie element). See, Cazeau v. Wells Fargo Bank, N.A., 2014 WL 11444089,
*19 (N.D. Ga. 2014) (“failure to apply for any position … [was] intervening event[]
that severed any possible causal connection between [plaintiff’s] protected activity
and either the backfilling of his position or termination.”). Accordingly, defendant
is entitled to summary judgment on this claim.
Moving on to the second stage of the McDonnell Douglas framework, the
court has previously found that defendant has offered legitimate, non-discriminatory
reasons for plaintiff’s rate of pay, for the failure to promote plaintiff to the positions
in question, and for the decision to put plaintiff on administrative leave (and for the
decision to terminate plaintiff’s employment, although the complaint does not allege
that act was retaliatory). Accordingly, the burden shifts to plaintiff to identify a
genuine issue of fact with respect to pretext.
This order has detailed the reasons why, in the context of plaintiff’s other
claims, plaintiff has not identified a genuine issue as to pretext. In the context of the
retaliation claims, plaintiff asserts an additional argument in support of pretext,
arguing that “not long after plaintiff complained, Plaintiff was placed on leave….”
Doc. no. 51, p. 19. Thus, for purposes of his claim that he was retaliated against
when he was placed on leave, plaintiff relies on a temporal relationship to show
pretext.
Plaintiff complained about Mosier’s discriminatory remarks in June or July of
2017 (deposition, doc. no. 48-4, p. 165), and was placed on administrative leave on
November 30, 2017. Assuming plaintiff complained on the last day of July, 2017,
there was a four-month gap between the last protected activity and defendant’s
decision to place plaintiff on leave. Shorter timespans than this have been held
insufficient to establish causation by temporal proximity. See, e.g., Meiners v.
University of Kansas, 359 F.3d 1222, 1231 (10th Cir. 2004) (two months and one
week, up to just under three months, are, under the court’s precedents, probably too
far apart to establish causation by temporal proximity alone).13 Considering the
four-month (or greater) period between the protected activity and the complained of
conduct, the court finds, in the circumstances of this case, that the time lapse defeats
any inference of causation. Accordingly, the court rejects plaintiff’s attempt to show
pretext based on the temporal relationship between his complaints about Mosier and
his being placed on leave.
For the reasons stated (lack of pretext evidence, and lack of evidence to
support a prima facie case with respect to plaintiff’s claims based on rate of pay and
failure to promote), defendant is entitled to summary judgment on the retaliation
claims.
4. Hostile Work Environment Claims
Finally, the court addresses defendant’s arguments for summary judgment on
plaintiff’s claims that he was harassed, subjecting him to a hostile work environment.

13 Plaintiff’s sur-reply brief (doc. no. 57, p. 3) argues defendant has not shown that plaintiff’s
complaints in June or July of 2017 were his last complaints. However, at the pretext stage of the
summary judgment analysis, it is plaintiff’s burden to identify evidence of pretext. Plaintiff cites
no evidence to show or suggest that he made any complaints after July of 2017.
To make out a hostile work environment claim under Title VII or §1981,
plaintiff must show: 1) that he is a member of a protected group; 2) that he was
subject to unwelcome harassment; 3) that the harassment was based on his race,
color, national origin, or disability; and 4) that due to the harassment’s severity or
pervasiveness, it altered a term, condition or privilege of plaintiff’s employment and
crated an abusive working environment. Payan v. United Parcel Service, 905 F.3d
1162, 1170 (10th Cir. 2018) (Title VII and § 1981). A plaintiff claiming a hostile
work environment claim under the ADA must show that a rational jury could find
that the workplace was permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the conditions of the plaintiff’s
employment and create an abusive working environment. Williams v. FedEx
Corporate Services, 849 F.3d 889, 897 (10th Cir. 2017). Age discrimination may
form the basis of a hostile environment claim if 1) the employee was discriminated
against because of his age; and 2) the discrimination created a workplace so
permeated with severe or pervasive intimidation, ridicule, and insult, that it altered
the employment conditions and created an abusive working environment.14 Howell
v. New Mexico Dept. of Aging & Long Term Services, 398 Fed. Appx. 355, *4 (10th
Cir. 2010), unpublished.
Thus, all of plaintiff’s hostile work environment claims require harassment so
severe or pervasive that they created an abusive working environment. In assessing
the pervasiveness and severity of allegedly harassing incidents, the court considers
the work atmosphere both objectively and subjectively, looking at the circumstances

14 Defendant argues that plaintiff does not allege a hostile work environment claim under the
ADEA. The complaint can be read more broadly than that. See, doc. no. 1, fourth cause of action,
incorporating all prior allegations. However, plaintiff does not ask the court to do so, and plaintiff
has identified no ageist comments. Plaintiff likely did not intend to allege a hostile environment
claim based on age. Nevertheless, as a precaution, the ADEA is included in the discussion of
plaintiff’s hostile environment claims.
from the perspective of a reasonable person in the plaintiff’s position. Tademy v.
Union Pacific Corp., 614 F.3d 1132, 1144 (10th Cir. 2008).
Plaintiff has not presented evidence which creates a genuine issue of fact
regarding harassment so severe or pervasive that it created an abusive working
environment in the legal sense. As previously explained, plaintiff contends that a
co-worker, Mosier, used slurs referencing plaintiff’s race, or color, or national origin
or disability. Also as explained earlier, the overwhelming weight of the evidence
establishes that the slurs by Mosier were not made to plaintiff’s face. Plaintiff
testified at his deposition that Shawna Charley, the employee who told him about
Mosier’s statements, spoke with plaintiff about Mosier’s statements between two
and five times. Doc. no. 48-4, p. 78. While clearly offensive, the slurs did not
threaten physical harm.15 Although plaintiff’s affidavit states that the slurs “caused
me unlawful stress,” and were “anxiety inducing” and “scary,” (doc. no. 51-2, ¶¶ 15,
21), plaintiff has identified no evidence showing that the comments interfered with
his job performance.
Although the alleged comments by Mosier have no place in in any
environment much less a work environment, the comments, when measured by legal
standards, are not sufficiently severe or pervasive as to alter the terms of plaintiff’s
employment and create an abusive work environment. See, Al-Kazaz v. Unitherm
Food Systems, Inc., 594 Fed. Appx. 460, 462-63 (10th Cir. 2014) (three incidents in
which plaintiff was called “camel jockey,” “sand *igger,” and “raghead,” both inside
and outside of plaintiff’s presence, were not sufficiently frequent or continuous to
create an objectively hostile work environment; affirming summary judgment for

15 Plaintiff asserts that Charley also told plaintiff to “watch his back,” because Mosier was saying
things behind his back. Doc. no. 51-4, p. 2 (EEOC statement). In that context, statements to
“watch your back” cannot reasonably be construed as threatening physical harm.
the defendant). Accordingly, defendant is entitled to summary judgment on the
hostile environment claims.
C. Summary
The court has found that defendant is entitled to dismissal of plaintiff's claims
alleged under the OADA for lack of standing.'® The court has also found that
defendant is entitled to summary judgment on all of plaintiffs federal claims, for
lack of sufficient supporting evidence. Accordingly, no claims survive this order,
and defendant is entitled to summary judgment in this action.
V. Conclusion
After careful consideration, the motion for summary judgment of defendant
SSM Health Care of Oklahoma, Inc. d/b/a Saint Anthony Hospital is GRANTED,
as follows. Plaintiff’s claims alleged under the Oklahoma Anti-Discrimination Act
are DISMISSED for lack of standing (lack of jurisdiction). Summary judgment is
GRANTED in favor of the defendant, and against the plaintiff, on plaintiff's federal
claims.
IT IS SO ORDERED this 5" day of January, 2021.

STEPHEN P. FRIOT —_—
UNITED STATES DISTRICT JUDGE

19-0655p012.docx

16 As an alternative basis for relief with respect to the OADA claims, the court finds that if it were
to reach the merits of those claims, defendant would be entitled to summary judgment for the same
reasons that apply to the federal claims. See, Jones v. Needham, 856 F.3d 1284, 1292 (10" Cir.
2017) (“The OADA is analyzed similarly to Title VII claims.”).
20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10388737. Public record. Not legal advice.