Petition for Writ of Certiorari — Tinkle v. Oklahoma Gas & Electric Co.

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supreme Court, U.S.

FILED

01 536 SEP 272001

No. 01- OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

DAVID R. TINKLE,

Petitioner,

OKLAHOMA GAS & ELECTRIC COMPANY,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

~ — a

Lewis BARBER, JR.

Attorney for Petitioner

1528 N.E. 23rd Street

Oklahoma City, OK 73111

(405) 424-5201

169579 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

The Age Discrimination in Employment Act 29 U.S.C. § 623(d)

expressly prohibits retaliation in employment resulting from an

individual opposing any practice made unlawful by the Act because

that individual “‘. . . testified, assisted, or participated in any manner

in an investigation, proceeding, or litigation under this chapter.”

The Petitioner, David Tinkle, testified and participated in a lawsuit

brought by a co-worker against the Respondent/Employer. First,

Tinkle rejected the request of the Respondent/Employer to confer

with its attorney regarding the co-worker’s lawsuit. Second, Tinkle

later testified and provided direct evidence of age discrimination

against the Respondent/Employer. Within a month after his initial

participation, his supervisor began to subject him to a sundry of

adverse employment actions, the last of which was abusive and

culminated in his termination.

The questions presented are whether:

1. Whether under the “tangible action” analysis of Ellerth,

the action taken by Tinkle’s supervisor suffices for the “adverse

employment action” prong in a retaliation claim; and,

2. In following the principles directed in Reeves, whether

Tinkle’s evidence was sufficient to survive judgment as a matter

of law by establishing a “prima facie case,” as that term is used in

McDonnell Douglas Corp. v. Greene, 411 U.S. 792, 802

(1973); and second, by the production of evidence from which

a rational factfinder could conclude that the employer’s proffered

explanation for its actions was false; and,

3. Whether the lower court’s erroneous application of the

incorrect legal standard influenced the ultimate conclusion that

Tinkled failed to prove an “adverse employment action” occurred.

TABLE OF CONTENTS

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Table of Cited Authorities .. 0... ccc sescsccvce

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Stateamemt OF FUSION ow. cect wecees

Statutory Provision Involved ..................

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Reason for Granting the Writ ..................

I. The Decisions Below Misapplies The

Evidentiary Burdens Of Plaintiffs Who

Attempt To Prove Intentional Discrimination

Through Indirect Evidence ..............

II. The Misapplication Of Sanchez Insulates An

Entire Category From Review ...........

Ill. The Courts’ Refusal To Consider Favorable

Inferences Treats Discrimination Differently

From Other Ultimate Questions Of Fact ...

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TABLE OF CITED AUTHORITIES

Page

Cases:

Burlington Industries v. Ellerth, 524 U.S. 742,

A Me re are passim

Crady v. Liberty Nat. Bank & Trust Co. of Ind.,

ee ee Ra ORE BOOED vc ccisasdceveses 15, 16, 22

Durham Life Ins. Co. v. Evans, 166 F.3d 139 (3d Cir.

DMP Cd SUS CAS ahispasawnkek ss cee sees 18, 19

Faragher v. City of Boca Raton, 524 U.S. 775,

SOEs MEO EEEEEED ceawccnacsccecses 8, 18, 19, 22

Harris v. Fork Lift Systems, Inc., 510 U.S. 17

Dn UTusiuece pGbouesenes ive 8, 9, 13, 14, 16

McDonnell Douglas Corp. v. Greene, 411 U.S. 792

ee ie oo aw eecawes i, 17

Oncale v. Sundowner Offshore Services, Inc.,

os Be | i, 8, 9, 10, 11, 15, 16

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133 (2000) ..... 8, 11, 13, 15, 17, 19, 20, 22

Riffel v. OG&E, No 97-6304 (10th Cir. 1997),

es BO GOP R RIOR ois cnccccccses 3, 4, 12, 13

Sanchez v. Denver Public Schools, 164 F.3d 527

en ew ede 15, 16, 20

Cited Authorities

Page

St. Mary's Honor Center v. Hicks, 509 U.S. 502

ROU s oa kb bdkeenawudedhededene bean ete 15

Texas Department of Community Affairs v. Burdine,

Pe Ae: ED win 4h 0 daca cana neennenes 11

Statutes:

ee Sea ED bb kn e's dec esekebedckkeebas 1

A a rrr re om s

Rule: "

Federal Rule of Civil Procedure 56 ............... 17

Other Authority:

Black’s Law Dictionary, Rvsd. 4th Ed. ............ 15

TABLE OF APPENDICES

Page

Appendix A — Order And Judgment Of The United

States Court Of Appeals For The Tenth Circuit

Dated And Filed June 29, 2001 .............. la

Appendix B — Order Of The United States District

Court For The Western District Of Oklahoma

Dated And Filed July 17,2000 ............... 6a

]

Petitioner respectfully petitions for a writ of certiorari to

review the judgement of the United States Court of Appeals for

the Tenth Circuit in this case.

OPINIONS BELOW

The district court’s opinion (per Magistrate Judge Gary M.

Purcell) granting respondent’s motion for summary judgment

(Appendix (Pet. App. “B”’)) is found at Pet. App. “B” at p. 6a

and is not published. The court of appeals’ Order and Judgment

(per Ebel, Porfilio and Kelly) affirming the grant of summary

judgment (Pet. App. “A”’) is found at Pet. App. “A” at 1a and is

not published.

STATEMENT OF JURISDICTION

The court of appeals entered its opinion and order on June

29, 2001. Petitioner invokes this Court’s jurisdiction under

28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

The provisions of 29 U.S.C. § 623(d) relevant to this petition

provide:

(d) Opposition to unlawful practices; participation

in investigations, proceedings, or litigation

It shall be unlawful for an employer to

discriminate against any of his employees or

applicants for employment, for an employment agency

to discriminate against any individual, or for a labor

organization to discriminate against any member

thereof or applicant for membership, because such

individual, member or applicant for membership has

opposed any practice made unlawful by this section,

or because such individual, member or applicant for

membership has made a charge, testified, assisted,

or participated in any manner in an investigation,

proceeding, or litigation under this chapter.

STATEMENT OF THE CASE

The Petitioner, David R. Tinkle (hereinafter referred to as

“Tinkle” or “Plaintiff’) was employed by Oklahoma Gas and

Electric (hereinafter “OG&E” or “Employer”) for twenty (20)

years at the time of his termination. He was a witness against

OG&E in an age discrimination law suit brought by a fellow co-

worker. After he participated in the “protected activity” lawsuit,

immediately thereafter he experienced a battery of adverse

employment actions. His normal, daily duties were driving a heavy

hauling truck. Over the years he suffered numerous job related

back and neck injuries — the last, a re-aggravation of a neck

injury, occurred in August, 1997, when he was forced to drive a

75 Ton Road Crane 80 miles.' The truck that he was assigned

to operate was not equipped with “air-ride-suspension” and

thereby presented a rough ride. Whereas, the trucks equipped

with “air-ride-suspension” presented a relatively smooth ride.

OG&E had in its inventory “air-ride-suspension” trucks which

Tinkle requested to be assigned and he was denied. Instead of

assigning him to a truck equipped with “air-ride-suspension”,

OG&E intentionally subjected him to physical harm and reprisal

action by ordering him to drive a 75 Ton Road Crane

approximately 80 miles. The District Court disregarded evidence

in support of Tinkle’s claim of retaliation (evidence disregarded

1. In 20 years of employment, he had driven this crane only

one (1) other time.

that appear on the face of the record will hereinafter be referred

to as “Disreg’d”). Both lower courts failed to apply proper

“standards” in ruling on Summary Judgment. A summary of some

of the events leading to the filing of this writ of certiorari are as

follows:

1. Shortly before undergoing neck surgery in March 1997,

Petitioner, David R. Tinkle (hereinafter “Tinkle”) had

been scheduled for deposition as a witness for Don

Riffel in Riffel v. OG&E, No 97-6304 (10th Cir. 1997),

D.C. No. CIV-96-1179-A, Western District of

Oklahoma. However, due to Tinkle’s health, (a neck

injury) the deposition was continued until June 6, 1997.

Pet. App. “B” at 13a Prior to his neck surgery, Tinkle

received a call from OG&E’s attorney who requested

that he meet with her to discuss the Riffel case, and

Tinkle responded by stating: “I am not interested”, and

he hung up the phone. (Disreg’d).

2. Tinkle returned to duty following his neck surgery on

April 28, 1997. Because of his surgery, he requested

that he be reassigned to drive a truck equipped with

“‘air-ride-suspension”, which would have minimized the

bumpy, rough ride that is peculiar to the standard truck

to which he was assigned. Notwithstanding the

availability of the requested vehicle, John Singleton,

Tinkle’s supervisor, denied his request. The record

indicates that after he refused to meet with OG&E’s

attorney regarding the Riffel age discrimination case,

he noticed a change in Singleton’s attitude toward him.

Pet. App. “B” at 14a, 15a, 31a, 32a.

3. Tinkle testified via deposition on June 6, 1997, in

opposition to OG&E in an age discrimination case,

Riffel, Id. Riffel maintained that John Singleton, his

supervisor, was the alleged discriminating official and

that he was terminated on the basis of age.” Tinkle

testified that Riffel had often been referred to by

“management” as “the old man” and specifically had

been referred to as “the old man” by John Singleton.

Tinkle testified that a few days after Singleton fired Riffel,

he heard Singleton, at a company meeting say, referring

to Riffel, “I’m not going to back that old man.” Tinkle

also indicated that, on that same occasion, Singleton

said: “if it had been anybody else, I would have gone to

bat for him. You know how old men are, they are —

they aren’t going to change.” The circuit court, in

reversing the decision of the district court in Riffel, found

that Tinkle’s testimony that Singleton indicated he would

have “gone to bat” for Riffel, but for the latter’s age,

amounted to direct evidence in support of Riffel’s age

discrimination claim and that the same precluded

summary judgment for OG&E. Pet. App. “B” at 8a,

9a, 12a.

4. After giving his deposition in June, 1997, Tinkle noticed

that John Singleton was intensifying the harassment.

Pet. App. “B” at 31a. Tinkle was not accorded the time

to do his “paper work” in the mornings and the tone of

Singleton’s voice changed to that of anger when he

spoke to Tinkle. (Disreg’d).

5. In August 1997, Tinkle was ordered by Singleton to

drive the 75 Ton Road Crane from Ardmore, Oklahoma

2. Singleton supervised both Tinkle and Riffel.

to Oklahoma City, Oklahoma, which is a distance of

approximately 80 miles. Tinkle had not been assigned

to crane duties and responsibilities. In fact, in over 20

years of service with OG&E, Tinkle had driven the 75

Ton Road Crane on only one (1) prior occasion. Driving

the 75 Ton Road Crane is extremely uncomfortable,

and presents a very bumpy and rough ride.

Notwithstanding the fact that Singleton knew of Tinkle’s

neck problems and that he was still seeing his doctor

regarding his neck surgery, he ordered and insisted that

Tinkle drive the crane. At the time, Singleton had the

regular assigned drivers ready and available to drive

the 75 Ton Crane. Pet. App. “B” at 16a-18a, 35a.

Because the 75 Ton Road Crane had a small cabin

frame, and the fact that Tinkle’s body size was too large

to be safely housed in the cabin, his head was constantly

being jammed into the roof of the cabin as he drove.

(Disreg’d). On one such jam or projection, his head

was rammed into the roof of the cab with such force

that resulted in further injury to his neck. Tinkle reported

his neck injury to his supervisor, Singleton. Singleton

took Tinkle to the office of the OG&E’s doctor, but

changed his mind after arriving at the doctor’s office

and did not allow Tinkle to see the doctor. Instead,

Singleton told Tinkle that he was being placed on “light

duty”— only to change his mind again, and advised

Tinkle that there was not any “light duty” available and

sent Tinkle home. Pet. App. “B” at 13a, 15a, 23a.

OG&E had in practice a policy of accommodating

employees who had been injured on the job. Some of

these employees were carried for years in a “light duty”

capacity. Pet. App. “B” at 16a.

8. Tinkle was given “light duty” restrictions by his doctor

for only a two week period, and could have returned to

work in September, 1997, but Singleton refused to allow

him to return for reason that Tinkle could not drive the

75 Ton Road Crane — a fact that Singleton knew or

should have know long before he ordered him to drive

the crane. Pet. App. “B” at 19a.

9. Tinkle was then illegally placed on short term/long term

disability.’ Thereafter, the long term disability insurance

coverage was terminated and Tinkle was not reinstated

by OG&E. (Disreg’d) and Pet. App. “B” at 18a.

10. Tinkle has no formal education and relied upon OG&E

for guidance in administrative matters such as his

worker’s compensation claim which Singleton advised

3. Tinkle’s doctor had restricted him to “light duty” for two

(2) weeks. In order to be placed on “short-term disability”, the

employee must be disabled far in excess of two weeks. Singleton,

rather than allow Tinkle to return to work in a “light duty” capacity

(several employees testified via affidavit that “light duty” was

routinely given to any one who was injured on the job, and they

identified various jobs that were available that Tinkle could have

performed), he conditioned Tinkle’s return on being able to drive

the 75 Ton Road Crane — a substantial change in the “terms and

conditions” of his job, as he had only driven the crane one (1) time

in a twenty-year period. Singleton intentionally kept Tinkle away

for a period sufficient for “short-term” disability to “kick-in”, and

when that expired, the “long-term” disability started. When the “long-

term” disability began, Tinkle was still working the part-time job

that he had been working for many years prior to 1997. Singleton

knew of Tinkles part time job at all relevant times. The “long-term”

insurance carrier investigated Tinkle’s ability to work, and took

pictures of him working at the part-time job and his “long-term”

benefits were not extended for reason that he was not totally disabled.

11.

$2.

13.

him to not file a claim. (Disreg’d). Singleton told Tinkle

that he was getting old and could not perform the job

and that he needed to find another job where he would

not be “bouncing in the truck”. Had Singleton not

assigned him to drive the 75 Ton Road Crane, he would

not have injured his neck. Further, his career could have

been greatly extended by assigning him to a truck

equipped with air-ride-suspension (these vehicles were

available). Pet. App. “B” at 19a, 20a.

The District Court granted summary judgment on July

17, 2000, holding, inter alia, that Tinkle failed to “allege

who denied him a ‘light duty assignment’ or when this

action occurred. It is not disputed that other members

of Plaintiff's heavy equipment operator work group had

previously been temporarily placed on light duty

following various injuries. . .” The district court further

rationalized with regard to the retaliation claim that

Tinkle “failed” to allege when the “denial” occurred or

who participated in this adverse action. Pet. App. “B”

at 16a, 35a.

Notice of appeal was timely filed to the Tenth Circuit,

and thereafter the decision of the District Court was

affirmed on June 29, 2001. The Tenth Circuit held:

“*. . . His allegations that Singleton refused plaintiff s

requested truck assignment or assigned him to drive

the crane do not rise to the level of an adverse

employment action”. Pet. App. “A” at 3a, 4a.

This Petition for a writ of certiorari followed.

REASON FOR GRANTING THE WRIT

The directions provided by this Honorable Court in

Burlington Industries v. Ellerth, 524 U.S. 742, 118 S. Ct.

2268 (1998); Faragher v. City of Boca Raton, 524 U.S. 775,

118 S. Ct. 2275 (1998); Harris v. Fork Lift Systems, Inc.,

510 U.S. 17 (1993); Oncale v. Sundowner Offshore Services,

Inc., 523 U.S. 75 (1998); and, Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000), have been so far departed

from by the lower courts that this Court’s attention is compelling.

In Ellerth this Court addressed “tangible employment actions”

as being actionable. This Court also addressed non-tangible

employment actions as being actionable when the same rises to

the level of being “hostile” or “abusive.” In Faragher at 807 this

Court applied the same standard as in Ellerth, holding an

employer liable to a victimized employee for hostile environment.

As a result of the directions in Faragher and Ellerth, the U.S.

Equal Employment Opportunity Commission, supra, published

and disseminated guidance in evaluating and defining what

constitutes “tangible and non-tangible employment actions” by

supervisors. The lower courts’ decisions in the case at bar mirrors

pre-Faragher and Ellerth misapplications of employment

standards with which this Court was confronted and subsequently

decided in the aforementioned two cases. Certainly, the EEOC

guidelines published as a result of the aforementioned two cases

are now in conflict with the decisions of the lower courts.

The lower courts’ misapplication of the standard in Ellerth

and Reeves appears on the face of both decisions. The lower

court rulings are also in conflict with the substantive issues raised

in Harris and Oncale which are specifically addressed herein.

The petition should be granted for three reasons:

First, the lower courts disregarded and failed to consider

evidence supported plaintiff's claim of retaliation. This Court

clearly expressed in Ellerth that a “tangible employment action”,

“constitutes a change in the terms and conditions of employment

that is actionable under Title VII.” Jd. at 753-754. The action by

Singleton “culminated” in the “tangible employment action” —

termination. The lower courts erroneously failed to consider the

reasonable “‘circumstances” relevant to the job assignment; but

instead, considered only the “nomenclature” of the job assignment,

rather then the foreseeable danger and harm of the assignment

as perceived by Tinkle, and as a reasonable factfinder could

perceive as “abusive”’. This erroneous misapplication voided any

consideration of “severe” and “pervasive” job terms and

condition, thereby eliminating any appropriate investigation or

inquiry into the existence or non-existence of “tangible

employment actions/adverse employment actions”. This line of

illogical deduction conflicts with this Courts direction in Ellerth

as referenced above, and fatally jars the foundation of Reeves at

150, Oncale at 81, and Harris’s at 23 — all standing, at a

minimum, on the principle of an examination of the complete

record in determining the applicability of Title VII. Again, this

“misapplication” of Ellereth and the cited companion cases

resulted in summary disposition of Tinkle’s retaliation claim.

Even if the lower courts were correct in applying the proper

standard — to which position Petitioner opposes — the evidence

at a minimum is sufficient to establish “abusiveness” which

“culminated” in Tinkle’s termination. Ellerth at 766 remanded

to allow plaintiff to amend and for defendant to raise affirmative

defenses, if any.

In dismissing Tinkle’s claim, the Tenth Circuit held:

His allegations that Singleton refused plaintiff's

requested truck assignment or assigned him to drive

the crane do not rise to the level of an adverse

employment action. See id at 532 (explaining that

“mere inconvenience or an alteration of job

responsibilities” does not constitute “adverse

employment action,” which requires a “significant

change in employment status”.

The lower courts, given the totality of circumstances, failed

to consider Tinkle’s perception of fear of re-injury to his neck.*

Certainly, a like “perception” and fear by Breakbill, Tinkle’s

co-worker, must be weighed as reasonable and in favor of Tinkle

— the “nonmoving party”. The evidence in the record shows

that Tinkle “begged” Singleton to not force him to drive the crane

for reason that he was still having problems with his neck and

that he was still seeing his doctor for this physical problem.

Considering the fact that the co-worker (Breakbill), whose normal

job assignment was driving the crane, offered to drive the crane

for fear of Tinkle being re-injured is evidence of “severe” and

“pervasive” acts in support of an “abusive” environment, which

4. Oncale at 81 provides:

... Objective severity of harassment should be judged

from the perspective of a reasonable person in the

plaintiffs position, considering “all the circumstances”

... Common sense, and an appropriate sensitivity to

social context, will enable courts and juries to distinguish

between simple teasing ... and conduct which a

reasonable person in the plaintiff's position would find

severely hostile or abusive.

neither court below considered.* The perception that Tinkle had,

as well as that of the co-worker, became a reality — Tinkle

sustained a serious re-injury to his neck, which “culminated” in

his termination. Surely, a reasonable factfinder could find that

the proffered reasons of the Employer to be false. Ellerth at

754 “severe and pervasive” conduct of supervisor; Reeves at

143 quoting Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 256 (1981). This extreme departure

from accepted and usual course of judicial proceedings calls for

an exercise of this Court’s supervisory power.

Second, the thirty-one page final order of the district court

is saturated with “credibility determinations and the weighing of

evidence” — even to the point of improperly considering evidence

that a jury would not be required to see or believe, such as

investigatory or inquiry type letters from plaintiff's counsel to the

insurance carrier regarding long term disability benefit of plaintiff.°

The lower courts failed to give favorable inference to evidence

supporting plaintiffs claim of retaliation, both courts failed to

follow the standard set by this Court for deciding summary

judgments. Reeves at 150-151:

“Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences

5. Oncal, id. See also Reeves at 149 holding: “It suffices to

say that, because a prima facie case and sufficient evidence to reject

the employer’s explanation may permit a finding of liability, the Court

of Appeals erred in proceeding from the premise that a plaintiff

must always introduce additional, independent evidence of

discrimination”

6. Reeves at 151: “Thus, although the court should review the

record as a whole, it must disregard all evidence favorable to the

moving party that the jury is not required to believe”

’

from the facts are jury functions, not those of a judge.’

Liberty Lobby, Inc., supra, at 255. Thus, although

the court should review the record as a whole, it must

disregard all evidence favorable to the moving party

that the jury is not required to believe. See Wright &

Miller 299. That is, the court should give credence

to the evidence favoring the nonmovant as well as

that “evidence supporting the moving party that is

uncontradicted and unimpeached, at least to the extent

that that evidence comes from disinterested

witnesses.”

It is undisputed that Tinkle enjoyed a complaint free

employment environment prior to his participation in the Riffel

case. From the time he rejected the request from OG&E’s

attorney to confer with her regarding Riffel, until he was

terminated, Tinkle experienced a variety of adverse employment

actions, which compelled “credibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences. . .””

7. The District Court erroneously misstates the time and

substance of plaintiffs claim by stating: “These allegations involve

actions taken more than two years after the alleged statements

by Singleton ...” (Pet. App. “B” at 14a). The evidence shows:

(1) approximately around March, 1997, plaintiff was scheduled to

testify via deposition in the Riffel case; (2) plaintiff rejected his

employer’s (call placed by attorney for OG&E to Tinkle) request to

visit with its attorney to discuss the Riffel case; (3) in March, 1997,

plaintiff underwent surgery on his neck; (4) plaintiff returned to

work after his surgery on April 27, 1997; (5) plaintiff immediately

detected a difference in treatment by his supervisor, to wit: not

being afforded time to do his paper work in the morning; voice was

that of anger any time he communicated with plaintiff; scrutinized

work more closely; refused plaintiff's request to be assigned to an

(Cont’d)

;

Reeves, id. at 155. The lower courts’ failure to follow the

precedent of a unanimous court in Reeves is indeed baffling, as

very little is left for one to misunderstand. Ergo, the decision

below must be sternly addressed to correct any further drastic

departures from this Court’s directions, and to guard against

weakening the newly published guidelines by EEOC. Further,

misapplications of the evidentiary burden of plaintiffs who attempt

to prove intentional discrimination through indirect evidence will

be thwarted. EEOC “NOTICE NO. 915.002” supra and

Reeves, 530 U.S. at 134.

Third, the Tenth Circuit’s misapplication of the elements

necessary in the case at bar to establish a retaliation claim

evidences signs of pre-Harris.* The court of appeals erroneously

(Cont'd) .

“air-ride-suspension truck, inter alia; (6) plaintiff testified in the Riffel

case on June 6, 1997, and his testimony amounted to direct evidence

against Singleton in support of Riffel’s claim of age discrimination;

(7) after his deposition, the harassment escalated until the date in August,

1997 that he was forced to drive a 75 Ton Road Crane that was known

by the supervisor and co-workers to be dangerous, considering

plaintiff's recent neck surgery and pre-existing back injuries. While the

time frame that Singleton made the comments in Riffel were two years

prior to Tinkles deposition, the retaliation against Tinkle occurred

immediately after he “participated” in the “protected activity”, and the

retaliation intensified after Tinkle gave his deposition on June 7, 1997,

and he was terminated in August, 1997. The trial court clearly misstated

the time of the “tangible employment action”.

8. Harris at 22-23:

Certainly, Title VII bars conduct that would seriously

affect a reasonable person’s psychological well-being,

but the statute is not limited to such conduct. . . whether

(Cont’d)

disregarded Tinkle’s evidence of harm flowing from the omissions

and commissions by Singleton, his supervisor. V hile Harris dealt

with the standard determining a “hostile” or “abusive”

environment, the Court emphasized that such a showing is

actionable conduct under Title VII.

The Court further stated that:

[Whether an environment is “hostile” or “abusive”

can be determined only by looking at all the

circumstances, which may include the frequency of

the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.

Id. at 17, 23. The record below is saturated with evidence which

establish “abusive” conduct toward Tinkle “culminating” in both

physical and psychological harm. In Tinkle, the lower courts did

not consider the distinction between “terms and conditions” of

employment relating to “operating” a crane versus “driving” a

crane eighty (80) miles — an essential indicia in determining

“adverse action” or “tangible employment actions”.’ By doing

(Cont'd)

an environment is “hostile” or “abusive” can be determined

only by looking at all the circumstances. These may include

... whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance ... no

single factor is required.

9. The EEOC has clearly effectuated this Court’s direction in

Ellerth and has published “guidance” for evaluating and defining

(Cont'd)

so the lower courts served “effectively to insulate an entire

category of employment discrimination from review.” Reeves at

148, quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502,

524 (1993). That is, if the assignment of a specific task or job to

an employee will mosi likely result in physical injury, does such

constitute evidence from which a jury could find as “abusive” or

in “retaliation” for engaging in the “protected activity’? Especially,

where it is shown that the assignment was not part of the plaintiff's

normal duties, and others who normally performed the job were

present, ready and able to perform the assignment without

involving any risk of harm or injury.

I. The Decisions Below Misapplies The Evidentiary

Burdens Of Plaintiffs Who Attempt To Prove

Intentional Discrimination Through Indirect Evidence

In summarily dismissing Tinkle’s claim of retaliation, the

circuit court applied the “mere inconvenience” standard of

Sanchez in a manner which resembled form over substance.

In so doing the circuit court improperly disregarded the totality

of plaintiff's evidence and gave narrow interpretation to the

actionable categories of adverse employment actions. In Oncale

this Court directed that “. . . work place behavior often depends

on a constellation of surrounding circumstances, expectations,

(Cont'd)

“tangible employment actions” (EEOC “Notice”, id.) The principle

in Crady recognized a tangible employment action as including

“ _. other indicies that might be unique to a particular situation”

(emphasis added). Black’s Law Dictionary, Rvsd. 4th Ed., defines

indicia as: “The term is much used in the civil law in a sense nearly

or entirely synonymous with circumstantial evidence. It denotes

facts which give rise to inferences, rather then the inferences

themselves. Graham Ice Cream Co. v. Petros, 127 Neb. 172, 254

N.W.869.”

and relationships which are not fully captured by a simple

recitation of the words used or the physical acts performed.”

Id. at 77-78. The circuit court elected not to undertake an Oncale

analysis.

It is apparent in Ellerth, that“. . . a tangible action taken by

a supervisor becomes for Title VII purposes the act of the

employer.” Jd. at 762. The Court further stated: “. . . A tangible

employment action constitutes a significant change in employment

status, such as. . . reassignment with significant difference in

responsibilities. . . .” Jd. at 761. In contrast, the circuit court

quoted Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993

F.2d 132 (CA7 1993), as did this Court at page 136 “(‘A material

adverse change might be indicated by a termination of

employment, .. . or other indicies that might be unique to a

particular situation’)”. Jd. at 761. Despite the fact that Tinkle

suffered injury as a result of a work assignment, given to him by

his supervisor, and it was foreseeable that the assignment would

cause the injury that did in fact result, both lower courts held

that those allegations did not state a “adverse employment action”

under the first prong of Sanchez. This failure is reviewable error

in light of Harris that it is enough to show that the harm alleged

is “physically threatening” or “abusive”. Jd. at 17, 23.

Moreover, this Court in resolving Ellerth found that the

employee, Ellerth, did not allege that she suffered a tangible

employment action, which would deprive Ellerth of the availability

of the affirmative defense of knowledge that the supervisor had

committed the acts of which she complained. Notwithstanding

failure to plead a tangible employment action, this Court held

that “Ellerth is still subject to vicarious liability . . .” for the

supervisor’s activity. In so holding, the Court also noted that

“Burlington should have an opportunity to assert and prove the

affirmative defense to liability.” In the case at bar the evidence

———— 6 ror mrs

— a ee

supports not only “tangible action”, but supports the theory that

it was efficaciously calculated by Singleton to adversely alter the

terms and conditions of Tinkle’s employment.

In like vein, Reeves, held that a plaintiff may survive judgment

as a matter of law by submitting two categories of evidence:

“. . . first evidence establishing a ‘prima facie case,’ as that term

is used in McDonnell Douglas Corp. v. Greene, 411 U.S. 792,

802 (1973); and second, evidence from which a rational factfinder

could conclude that the employer’s proffered explanation for its

actions was false... .” A review of the evidence in matters

involving summary judgment under Rule 56, the Court in Reeves

reasoned:

... Inthe analogous context of summary judgment

under Rule 56, we have stated that the court must

review the record “taken as a whole.” Matsushita

Elec. Industrial Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). And the standard for granting

summary judgment “mirrors” the standard for

judgment as a matter of law, such that “the inquiry

under each is the same.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250-251 (1986);

See Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). It therefore follows that, in entertaining a

motion for judgment as a matter of law, the court

should review ail of the evidence in the record.

In doing so, however, the court must draw all

reasonable inferences in favor of the nonmoving party,

and it may not make credibility determinations or

weigh the evidence. Lytle v. Household Mfg., Inc.,

494 U.S. 545, 554-555 (1990); Liberty Lobby, Inc.,

supra at 254; Continental Ore Co. v. Union

Carbide & Corbin Corp., 370 U.S. 690, 696 n.6

(1962). “Credibility determinations, the weighing of

evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge.”

Liberty Lobby, supra at 255. Thus, ajthough the

court should review the record as a whole, it must

disregard all evidence favorable to the moving party

that the jury is not required to believe. See Wright &

Miller 299. That is, the court should give credence

to the evidence favoring the nonmovant as well as

that “evidence supporting the moving party that is

uncontradicted and unimpeached, at least to the extent

that that evidence comes from disinterested

witnesses.” Jd. at 300.

The presence of supervisory action of Ellerth is equally

applicable to satisfy the prima facie showing of retaliation."°

10. After Ellerth, the United States Equal Employment

Opportunity Commission (hereinafter “EEOC”) published

“NOTICE”, No. 915.002 dated June 18, 1999, SUBJECT:

Enforcement

Guidance: Vicarious Employer Liability for Unlawful Harassment

by Supervisors. PURPOSE: “This document provides guidance

regarding employer liability for harassment by supervisors based

on sex, race, color, religion, national origin, age, disability, or

protected activity. In Paragraph IV.B. (Definition of “Tangible

Employment Actions”) the EEOC, in defining tangible employment

actions, relied on this Court’s decision in Ellerth, 118 S. Ct. 2269;

Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) at 2284-

85; and Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152 (3d Cir.

(Cont’d)

In this case, this court need only perform a superficial review of the

findings entered by the district court and subsequently adopted by

the circuit court to resolve that Tinkle was not afforded the benefit

of the favorable inferences of Reeves."! Additionally, it must be noted

that there is ample evidence that the employer’s reason for the decision

to make Tinkle drive the crane is false. Most relevant to this

conclusion is the fact that the two other persons who were assigned

to drive the 75 Ton Road Crane were present at the time Singleton

ordered Tinkle to drive, and one stated that he would drive instead

of Tinkle. Because Tinkle came forth with prima facie evidence and

proof of mendacity, summary judgment was precluded.

(Cont’d)

1999) (“a supervisor can only take a tangible adverse employment action

because of the authonity delegated by the employer ... and thus the

employer is properly charged with the consequences of that delegation.”)

The EEOC , based on this Court’s ruling in Ellerth at 2268 and 2270;

and Faragher, at 2284, 2291, and 2293, listed “examples of tangible

employment actions” — which included, among others, “work

assignment.” In so doing, the EEOC concluded “any employment action

qualifies as ‘tangible’ if it results ina significant change in employment

status. For example, significantly changing an individual’s duties in his

or her existing job constitutes a tangible employment action regardless

of whether the individual retains the same salary and benefits.”

. 11. Because he was still recovering from neck surgery and still

having problems with his neck, Tinkle begged Singleton to not force

him to drive 80 miles in the 75 Ton Road Crane. Tinkle, realizing the

danger in driving the road crane, was fearful that he would re-injure

his neck. At the time this order was given, both men who were assigned

to drive and operate this crane were present and available to carry out

the assignment. Further, one of the men, Breakbill, offered to drive the

crane because he was fearful that the drive would further aggravate

Tinkle’s condition. However, Tinkle, fearing the rath of Singleton and

that Singleton would retaliate against both him and Breakbill, was forced

to decline the offer. (Disreg’d).

II. The Misapplication Of Sanchez Insulates An Entire

Category From Review

One consistent theme arises from this Court’s leading

employment decisions in Reeves and Ellerth: this Court has

exercised great care to review rulings which depart from settled

practices in identifying, analyzing, and eradicating practices which

offend its continued commitment to a non discriminatory work

place. It is equally clear that the examples of actionable conduct

referenced in those decisions is not exhaustive. The lower courts’

departure from this practice in categorizing Tinkle’s complaints

as “mere inconveniences” and in doing so, failed to follow this

Court’s direction that trial court should not “treat discrimination

differently from other ultimate questions of fact.” Reeves at 148.

In this case, the Tenth Circuit cited Sanchez for the

proposition of establishing a prima facie case ofa retaliation claim.

The court held that a plaintiff must show: “1) she was engaged in

opposition to Title VII or ADEA discrimination; 2) she was

subjected to adverse employment action; and 3) a causal

connection existed between the protected activity and the adverse

employment action.” Jd. The principal reason in denying Tinkle’s

appeal was that Tinkle failed to show that Singleton’s actions in

refusing to assign Tinkle to a truck with “air-suspension-ride” or

the assignment of him to drive the 75 Ton Road Crane did not

rise to the level of an “adverse employment action”. (Pet. App.

“A” at 3a, 4a). The lower courts were reviewing the evidence in

a manner that disregarded evidence favorable to Tinkle and failed

to draw all reasonable inferences in his favor. Specifically, Tinkle’s

last injury in August 1997, resulted from being forced to drive

the 75 Ton Road Crane approximately 80 miles. While he was

qualified to operate the crane, there is a big difference in

“operating” the vehicle and “driving” it on the highway. He had

only driven the crane one (1) other time in twenty (20) years of

employment with OG&E. The lower courts failed to afford Tinkle

a favorable inference under the circumstances of his neck injury

and other past injuries as being the reasons for driving the road

crane only (1) one other time.

Ill. The Courts’ Refusal To Consider Favorable

Inferences Treats Discrimination Differently From

Other Ultimate Questions Of Fact

The U.S. Equal Employment Opportunity Commission’s

“Notice” at para I “Introduction”, id., clearly enunciates this

Courts mandate in Ellerth (524 U.S. at 762) for Title VII and

other “protected activity” purposes “. . . from the perspective of

the employee, the supervisor and the employer merge into a single

entity”. Throughout Tinkle’s pleadings in the trial court, he

complains about adverse treatment inflicted by Singleton

(also much of the same is reflected is final order of the trial court),

but nevertheless the trial court concluded:

Plaintiff next alleges that the “denial of air-ride-

suspension truck” supports his retaliation claim.

Plaintiff avers in his responsive affidavit that Tom

Howard and “Breakbill” are assigned to trucks

equipped with air-ride-suspension. However, again,

Plaintiff makes no specific allegations as to when the

“denial” occurred or who participated in this alleged

adverse action. Plaintiff also does not allege that such

an accommodation was given to other co-workers

as a result of an injury. In Plaintiffs deposition

testimony, he stated that no work restrictions were

placed on him by his treating physician after his March

1997 neck surgery. There is substantial evidence that

operating heavy equipment such as cranes was a

normal part of Plaintiff's job as well as the jobs of

other OG&E employees having the same position as

the Plaintiff. Under these circumstances, no inference

of retaliation is shown by Plaintiff's allegation of a

“denial of air-ride-suspension truck.”

Pet. App. “B” at 34a, 35a.

Just a cursory review of the above excerpt portion of the

trial court’s order reveals glaring dissensions with Ellerth,

Faragher, and Reeves. As example, There should there have

been a “favorable inference” drawn from: (1) that a “request”

for “air-ride-suspension” was made, considering that a ‘denial’

of the same was confirmed by the court; (2) that the ‘denial’ was

made in the relevant and material time frame; (3) that since others

were assigned to “air-ride-suspension” trucks, it is reasonable

to infer that Tinkle, with 20 years of seniority, could be or should

have been assigned such a truck — especially given his neck

and back injuries; (4) that the complaint was registered with his

supervisor, John Singleton; (5) that since Tinkle had driven the

crane only one (1) time in 20 years that this was not a part of

his normal duties. Thus, applying Ellerth, as a supervisor, the

acts of Singleton and that of OG&E “merge as a single entity.”

Id. at 762.

Without question a rational factfinder could find that the

assignment to the road crane, under these “indicies”, Crady, was

in retaliation for his testimony against Singleton. A reasonable

jury could also conclude that Singleton’s refusal to allow Tinkle

to file a worker’s compensation claim was in retaliation for his

testimony against Singleton. It is also reasonable to infer that a

jury could conclude that Singleton’s refusal to allow Tinkle to

perform “light duty” when others that were injured were routinely

assigned to light duty. Ironically, the district court erroneously

concluded that Tinkle’s failure to identify the age groups of those

}

iii

who were allowed “light duty” was a bar to his age discrimination

claim which is not being raised herein. However the district court

used its finding that Tinkle failed to identify the ages of other

individuals who had been given “light duty” to bar his claim of

age discrimination. The same evidence that allowed the district

court to conclude that others had indeed been afforded “light

duty” was the evidence that supports a finding the Tinkle made a

prima facie showing of retaliation. As example, the court did

agree that others were given light duty; and, that finding is

determinative that light duty assignments were available to Tinkle,

and inferentially that Tinker should have been assigned a air

suspension ride truck. (Pet. App. “B” at 15a, 16a).

The district court further found that there was no evidence

that Singleton was aware of the adverse testimony given by Tinkle

in the Riffel case. This position again presupposes that a

reasonable factfinder could not infer that: (1) Tinkle’s assignment

to drive the 75 Ton Road Crane; (2) Tinkles resultant injury;

(3) Singleton’s failure to allow Tinkle to file a worker’s

compensation claim; and (4) Tinkle’s ultimate termination was

caused by Tinkle’s testimony against Singleton.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

Lewis BARBER, JR.

Attorney for Petitioner

1528 N.E. 23rd Street

Oklahoma City, OK * 7311]

(405) 424-5201

APPENDIX

APPENDIX A — ORDER AND JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT DATED AND FILED JUNE 29, 2001

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 00-6280

(D.C. No. 99-CV-1132-P)

(W.D. Okla.)

DAVID R. TINKLE,

Plaintiff-Appellant,

OKLAHOMA GAS & ELECTRIC COMPANY,

Defendant- Appellee.

ORDER AND JUDGMENT*

Before EBEL, PORFILIO, and KELLY, Circuit Judges.

After examining the briefs and appellate record, this

panel has determined unanimously that oral argument would

not materially assist the determination of this appeal.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and collateral

estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

Appendix A

Plaintiff David Tinkle appeals from the magistrate

judge’s summary judgment dismissal of his complaint against

his former employer, Oklahoma Gas and Electric Company

(OG&E).' Plaintiff alleged age discrimination under the Age

Discrimination in Employment Act, 29 U.S.C. §§ 621-34;

interference with his right to receive benefits in violation of

the Employee Retirement Income Security Act, 29 U.S.C.

§ 1140; intentional or negligent infliction of mental or

emotional distress; and retaliation for his participation in

another employee’s age discrimination claim. On appeal,

plaintiff challenges only the dismissal of his retaliation

- claim.’ Therefore, all other issues that were decided by the

magistrate judge are considered waived. See State Farm Fire

& Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

We affirm.

The parties are familiar with the facts, which are fully

set out in the magistrate judge’s very thorough thirty-one

page order. Thus, we will only briefly repeat those necessary

1. The parties consented to disposition of this case by the

magistrate judge. See.28 U.S.C. § 636(c)(3).

2. At the conclusion of his brief, plaintiff summarily requests

the court to also reverse his age discrimination claim. Plaintiff does

: not otherwise argue his age discrimination claim in his brief.

Accordingly, we do not address this claim on appeal. See Ambus v.

Granite Bd. of Educ., 975 F.2d 1555, 1558 n.1 (10th Cir. 1992)

(stating an issue mentioned in brief on appeal, but not addressed, is

waived), modified on other grounds on reh'g, 995 F.2d 992 (10th

Cir. 1993); Fed. R. App. P. 28(a)(9)(A) (requiring that argument

contain the “appellant’s contentions and the reasons for them, with

citations to the authorities and parts of the record on which the

appellant relies”).

Appendix A

to resolve the appeal. Plaintiff was employed by OG&E in

its heavy hauling department. In March 1997, he was listed

as a witness against OG&E in an age discrimination claim

brought by another OG&E employee, Don Riffel, but he

refused to meet with OG&E’s attorney to discuss the Riffe]

case. Plaintiff also had neck surgery that month. When he

returned to work in April, his supervisor, John Singleton,

refused plaintiff's request to be assigned to drive an

air-suspension ride truck, which has a softer ride than other

trucks. Plaintiff claims his request was refused because of

his participation in the Riffel case.

Plaintiff gave his deposition in the Riffel case in June

1997, Providing some evidence that Singleton discriminated

against Riffel because of his age. In August 1997, Singleton

ordered plaintiff to drive a seventy-five ton crane. Plaintiff

claims that this crane has a rough and bumpy drive and that

he injured his neck driving it. He claims Singleton made

him drive the crane in retaliation for his deposition testimony.

Thereafter, plaintiff's doctor restricted him to light duty work

assignments for two weeks, and plaintiff alleges Singleton

refused to give him available light work assignments.

To establish a prima facie case of retaliation, plaintiff

must show he was engaged in protected Opposition to age

discrimination, he was subjected to adverse employment

action, and a causal connection existed between the protected

activity and the adverse employment action. Sanchez v.

Denver Pub. Sch., 164 F.3d 527, 533 (10th Cir. 1998). We

have reviewed the briefs and the record on appeal, and are

not persuaded by plaintiff's claims of error. His allegations

that Singleton refused plaintiff's requested truck assignment

Appendix A

or assigned him to drive the crane do not rise to the level of

an adverse employment action. See id. at 532 (explaining

that “mere inconvenience or an alteration of job

responsibilities” does not constitute “adverse employment

action,” which requires a “significant change in employment

status” (quotations omitted)). Further, there is no record

support for plaintiffs assertion that Singleton refused him

available light-duty job assignments after he injured his neck

in August. The magistrate judge properly disregarded

statements in plaintiffs affidavit that contradicted his earlier

sworn deposition testimony. See Kendrick v. Penske Transp.

Servs., Inc., 220 F.3d 1220, 1224 n.2 (10th Cir. 2000).

Plaintiff's evidence demonstrates only that some employees

were given short-term, light-duty assignments for various

medical reasons. However, plaintiff failed to present any

evidence of any specific light-duty work that was available

for him to do after his injury and it is undisputed that plaintiff

never applied for any light-duty work assignments.

Plaintiff also failed to present evidence that a causal

connection existed between his participation in the Riffel

case and the alleged adverse employment actions. He

presented no evidence that Singleton had any knowledge that

plaintiff was a witness in the Riffel case, had refused to

cooperate with an OG&E attorney or had given deposition

testimony implicating Singleton. A party opposing summary

judgment cannot rest upon his pleadings, but “must bring

forward specific facts showing a genuine issue for trial as to

those dispositive matters for which [he or she] carries the

burden of proof.” Jenkins v. Wood, 81 F.3d 988, 990 (10th

Cir. 1996).

RITA IR Hee RR Se ROE aR RSET Rar UR Io Sih Nis

PSE IEEE EINE SERRE RRR A RRS AO Geet Rt,

Appendix A

The magistrate judge thoroughly addressed the

arguments plaintiff raises on appeal, and we AFFIRM for

Substaritially the same reasons as set forth in the magistrate

judge’s order filed on July 17, 2000.

Entered for the Court |

John C. Porfilio

Circuit Judge

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT

OF OKLAHOMA DATED AND FILED JULY 17, 2000

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

CIV-99-1132-P

. DAVID TINKLE,

Plaintiff,

vs.

OG&E,

Defendant.

ORDER

Before the Court is Defendant’s Motion for Summary

Judgment pursuant to Fed.R.Civ.P. 56(b), to which Plaintiff

has responded. The parties have previously consented to

proceed before the undersigned Magistrate Judge pursuant

to 28 U.S.C. §636(c)(1).

Plaintiff filed this cause of action on August 4, 1999,

seeking damages and injunctive relief against Defendant, his

former employer. The Complaint alleges a violation of the

Age Discrimination in Employment Act (“ADEA”) and a

violation of 29 U.S.C. §1140 of the Employee Retirement

Income Security Act (“ERISA”).' Plaintiff also alleges a

1. Although Plaintiff alleges in the Complaint that 42 U.S.C.

§1983 provides an additional statutory basis for his cause of action,

Plaintiff's Complaint contains no specific allegations directed toward

(Cont'd)

Sieeemmne ne esses seas

Appendix B

pendent state tort claim of intentional or negligent infliction

of emotional distress and a claim of retaliation under 29

U.S.C. §623(d) of the ADEA.

Summary judgment may be granted only where the

pleadings and any supporting documentary materials “show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(c). In considering a motion for summary

judgment, the Court reviews the evidence and the inferences

drawn from the record in the light most favorable to the

nonmoving party. Kaul v. Stephan, 83 F.2d 1208, 1212 (10th

Cir. 1996); Calhoun v. Gaines, 982 F.2d 1470, 1472 (10th

Cir. 1992); Manders v. State of Oklahoma, 875 F.2d 263,

264 (10th Cir. 1989). A dispute is “genuine” if a reasonable

jury could return a verdict for the nonmoving party. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Material

facts” are “facts which might affect the outcome of the suit

under the governing law.” Jd. Additionally, if the moving

party demonstrates an absence of evidence regarding an issue

on which the nonmoving party will bear the burden of proof

at trial, the nonmoving party can defeat summary judgment

only by designating with evidence outside of the pleadings

“specific facts showing that there is a genuine issue for trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

(Cont'd)

this provision of the Civil Rights Acts, nor does Plaintiff allege state

action on the part of Defendant, a private corporate entity.

Accordingly, it appears that the reference to 42 U.S.C. §1983 is

merely surplusage. Nevertheless, if Plaintiff is asserting a claim

under 42 U.S.C. §1983, Defendant is entitled to summary judgment

on this claim in the absence of the requisite showing of state action.

See e.g., Flagg Bros. v. Brooks, 436 U.S. 149, 155-157 (1978).

Appendix B

The following uncontroverted material facts have been

considered in resolving Defendant’s dispositive Motion’:

Plaintiff received notice from American Fidelity that

American Fidelity was stopping Plaintiff’s

long-term disability payments.

Plaintiff is now and has for seven years worked to

take care of a car wash. He picks up paper and trash,

washes down the bays, and puts soap and detergent

in barrels.

Plaintiff had back surgery in 1985, following which

he was placed on light duty for a short time.

Other members of Plaintiff's work group have

previously been temporarily placed on light duty

following various injuries, including Don Riffel who

was placed on light duty for a little over a month.

Plaintiff started keeping written notes as early as

1995 of job-related issues because he felt he was

2. In many instances in Plaintiff's Response to Defendant’s

motion, Plaintiff makes broad denials that are either inconsistent

with his own deposition testimony or contain argumentative

conclusions unsupported by facts showing a dispute exists. Plaintiff

cannot simply deny or alter statements made in his deposition. Bohn

v. Park City Group, Inc. -94 F.3d 1457, 1463 (10th Cir. 1996) (when

affidavit contradicts deposition testimony, “the affidavit should not

be considered”). Plaintiff also cannot deny or alter the terms of the

disability policy in question, which, contrary to Plaintiff's assertions,

are attached to Defendant’s Motion.

10.

Appendix B

being harassed by John Singleton, and he felt that

John Singleton, who was not his supervisor at that

time, was out to get him. According to Plaintiff, Mr.

Singleton harasses “anyone he wants to.”

It was part of Plaintiffs job at OG&E even before

1980 to operate a crane. Between 1980 and 1990

when Plaintiff worked in the heavy hauling

department at OG&E Plaintiff operated a crane two

to three times a week to load and unload equipment.

When Plaintiff was released by his doctor to return

to work after his March 1997 neck surgery,

Plaintiff's doctor told him he could not continue very

much longer hauling and driving the semis and

operating heavy equipment.

Plaintiff reinjured his neck on August 21, 1997,

while driving a road crane and after that he was never

medically released to return to the full duty of his

position with OG&E.

Plaintiff applied for and received disability payments

from American F idelity following his August 1997

injury. Plaintiff understands that American Fidelity

Oversees and administers the long-term disability

program adopted by OG&E for its employees.

Periodically, American F idelity requested documents

from Plaintiffs doctor or information from Plaintiff

10a

Appendix B

11. Plaintiff understood that he had to fill out forms as

requested by American Fidelity in order to continue

receiving employment disability benefits.

12. When Plaintiff attempted to return to his previous

job around May 24, 1999, he had not been released

to full duty by his doctor.

13. Because of Plaintiff's medical restrictions, he could

not return to his previous job at OG&E, and Plaintiff

never applied for any other positions at OG&E.

14. The most recent medical information provided by

Plaintiff to OG&E and signed by Dr. Schimandle

reflects the following restrictions: no lifting or

carrying of objects weighing more than twenty-five

pounds; no repetitive use of the hands, wrists, or

fingers; and no operating of heavy equipment.’

15. Under the terms of the disability plan offered to

OG&E employees, an employee is entitled to receive

benefits for the first 24 months of disability if the

employee “is disabled and unable to do substantially

all of the duties of his employment,” and after that

the employee is entitled to receive benefits if he “is

disabled and completely unable to engage in any

occupation for wage or profit for which he is

reasonably qualified by training, education, or

experience.”

3. Plaintiff contends in his Response to Defendant's Motion

that this is a “fraudulent” document but does not allege any facts to

support this conclusion or dispute the facts contained in the document.

17.

18.

19.

20.

21.

lla

Appendix B

American Fidelity received a letter from Lewis

Barber, Jr., Plaintiff's attorney, indicating that

Plaintiff was interested in appealing American

Fidelity’s denial of long-term disability benefits to

Plaintiff. The letter was dated June 5, 1999,

Ms. McKinney responded to Mr. Barber by letter

dated July 22, 1999, asking Mr. Barber to forward

to American Fidelity the information upon which

the appeal is based and to include any information

that will allow the company to understand fully the

reasons he felt the decision to terminate benefits

beyond twenty-four (24) months should be

reevaluated. : :

Barber responded by letter dated August 2, 1999:

“I will meet with my client no later than Friday of

this week and forward to you the information you

requested.”

To date, American Fidelity has not received

information from Barber or Plaintiff to pursue an

appeal.

Plaintiff received a letter from American Fidelity

advising him: “If you disagree with this decision,

you have the right to appeal. Your appeal must be

made in writing 90 days from the date of this letter

and should include any additional information which

will help us evaluate the claim.” Plaintiff admits that

he never appealed the decision, but he gave the letter

to his attorney.

12a

Appendix B

I. ADEA Claim

Defendant seeks summary judgment as to Plaintiff's age

discrimination claim. Under the ADEA, it is unlawful for an

employer “to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s age.”

29 U.S.C. §623(a)(1). “ ‘A plaintiff who seeks to prove that

an employer discriminated against him or her can use either

direct or circumstantial evidence.’ ” Stone v. Autoliv ASP,

Inc., 210 F.3d 1132, 1136 (10th Cir. 2000) (quoting /ngels

v. Thiokol Corp., 42 F.3d 616, 620 (10th Cir. 1994)).

“A plaintiff proves discrimination through direct

evidence by establishing proof of an existing policy which

itself constitutes discrimination.” /d. (quoting Ramsey v. City

& County of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990),

cert. denied, 506 U.S. 907 (1992)). As evidence of age

discrimination, Plaintiff points to the comments by his

supervisor, John Singleton, directed toward another

employee in Plaintiff's work group, Don Riffel, (1) that Riffel

was an “old man,” (2) that after Riffel was fired Singleton

was “not going to back that old man,” and (3) that “if it had

been anybody else, I would have gone to bat for him. You

know how old men are, they are — they aren’t going to

change.” Plaintiff's Response, at 19. Plaintiff asserts that

these statements by Singleton provide direct evidence that

Defendant had a policy of making the age of older employees

“a factor in weighing their value and retention in the work

force.” Plaintiff's Response, at 19.

13a

Appendix B

The statements attributed to Singleton to which Plaintiff

refers were taken from Plaintiff? S Own deposition in another

age discrimination action brought by Riffel against OG&E

in this Court. Plaintiff's deposition was taken in that matter

on June 6, 1997. Defendant’s Motion, Ex. G. In July 1997,

. the district court entered summary judgment in favor of

OG&E. Defendant’s Motion, Ex. H. However, on appeal,

the Tenth Circuit Court of Appeals issued a decision on

March 31, 1998, finding that Plaintiff's deposition testimony

provided some direct evidence of age discrimination against

Riffel sufficient to overcome summary judgment and reversing

the summary judgment previously entered. Defendant’s

Motion, Ex. | (Riffel v. OG&E, No. 97-6304 (10th Cir. Mar.

31, 1998) (Order and Judgment)).

Plaintiff's deposition testimony in the Riffel case

concerned remarks made by Singleton directed primarily

toward Riffel, not Plaintiff. The remarks were not made

within close temporal proximity to any of the alleged adverse

employment actions taken against Plaintiff. Riffel was

terminated in March 1995, and Plaintiff testified in the Riffel

deposition that the remarks were made in a meeting a few

days after Riffel was terminated. Defendant’s Motion, Exs.

H, I; Defendant’s Reply, Ex. A, at 23, Although Plaintiff

alleges in his Complaint that Defendant “has continuously

discriminated against him because of his age,” in Plaintiff? s

responsive affidavit Plaintiff describes an incident in August

1997 in which he was ordered by Singleton to drive a 75-ton

road crane “while I was stil] recovering from neck surgery.”

Plaintiff also alleges that Singleton refused to allow Plaintiff

to drive an “air-ride-suspension” truck or to give Plaintiff a

“light duty” assignment following his return to work from

l4a

Appendix B

neck surgery on April 28, 1997. These allegations .nvolve

actions taken more than two years after the alleged statements

by Singleton, and Singleton’s alleged statements do not

provide direct evidence of an existing policy by OG&E which

itself constitutes discrimination.

Although in the Riffel case the Tenth Circuit Court of

Appeals concluded that the age-related comments attributed

to Singleton were “not an instance of a stray remark in the

work place. . . ,” see Defendant’s Motion, Ex. 1, at 4, those

same comments, allegedly made more than two years prior

to any alleged adverse employment actions involving

Plaintiff and directed primarily toward another employee,

constitute only “[i]solated comments, unrelated to the

challenged action, [that] are insufficient to show

discriminatory animus” in this case. Cone v. Longmont

United Hospital Assoc., 14 F.3d 526, 531 (10th Cir. 1994).

The fact that the same supervisor was involved is not alone

sufficient to create any nexus between the earlier alleged

comments directed toward Riffel and the alleged adverse

actions taken in 1997 or subsequently involving the Plaintiff.

To establish a claim of age discrimination under the

ADEA based on circumstantial evidence, the plaintiff must

show: 1) he is a member of the class protected by the statute;

2) he suffered an adverse employment action; 3) he was

qualified for the position at issue; and 4) he was treated less

favorably than others not in the protected class. Sanchez v.

Denver Public Schools, 164 F.3d 527, 531 (10th Cir. 1998).

“Once the plaintiff establishes a prima facie case, the burden

shifts to the defendant to articulate a legitimate

nondiscriminatory reason for the action. If the defendant does

15a

Appendix B

so, the plaintiff must show the defendant’s preferred reasons

are pretextual.” Jd.

Plaintiff alleges three succinct adverse employment

actions: 1) the refusal of his supervisor, Singleton, to assign

him to “light duty” or to operate trucks equipped with air-

ride-suspension when he returned to work in April 1997

following his neck Surgery, and in particular the action of

Singleton in August 1997 in ordering Plaintiff to drive a

75-ton road crane which has a “very tough and bumpy ride”

and “relatively low” roof space in its cabin; 2) his placement

on short-term disability on or about August 25, 1997: and

3) OG&E’s refusal to reinstate him to his previous job on or

about May 24, 1999. In his deposition testimony, Plaintiff

also stated that he was treated differently due to age

discrimination because his supervisor, John Singleton, “was

all the time telling me that I ought to find me another job.

My ... I was getting older, my body was wearing out, and

I couldn’t continue to do this, and my doctors made the same

Statement.” Defendant’s Motion, Ex. C, at 105. Plaintiff

testified that by the phrase “continue to do this,” his

supervisor and his doctor were referring to heavy manual

labor and “bouncing in the truck.” Jd.

There is no dispute that during all relevant periods of

time Plaintiff was and is a member of the class protected by

the ADEA. Plaintiff first contends he was treated differently

because of his age with regard to his job responsibilities

between April 1997, when he returned to work following

neck surgery, and August 1997, when he reinjured his neck.

Plaintiff presents the affidavits of himself and three other

present or former OG&E employees in response to

16a

Appendix B

Defendant’s Motion. These affiants aver that some OG&E

employees who had been hurt or injured were placed on “light

duty” assignments following their injuries, and one of the

affiants, Don Riffel, avers that he was “placed on restricted

duty for several months” following an on-the-job injury.

Plaintiff's Response, Exs. 2, 3, 4. However, none of the ages

of these other employees or Riffel is given, and none of the

affiants stated that only younger employees or that all injured

employees were given special accommodations in their

subsequent work responsibilities.

The employees aver that “special training was necessary”

to drive and operate the 75-ton road crane, and that “very

few” employees were assigned to drive and operate the 75-ton

road crane. Plaintiff's Response, Exs. 2, 3. Plaintiff and the

affiants identified Rick Brakebill, Craig Sitton, and Mike

Neary as individuals who had been assigned to drive and

operate the 75-ton road crane. Plaintiff's Response, Exs. 1, 2.

Plaintiff avers that “Breakbill (sic) is also much younger than

me.” Plaintiff's Response, Ex. 1, at 3. In his affidavit,

Plaintiff also avers that on the date he was ordered by

Singleton to drive the 75-ton road crane, “the regular crane

operators, Rick Brakebill and Mike Neary were both on duty

and available to drive the road crane.” Plaintiff's Response,

Ex. 1, at 3. However, Plaintiff concedes that he had driven

the 75-ton road crane once before, indicating that Plaintiff

was one of the “very few” employees who had been assigned

previously to drive the 75-ton road crane.

Plaintiff stated in his deposition that he felt Singleton

harassed him beginning in 1985, Defendant’s Motion,

Ex. C, at 137. However, Plaintiff also stated that Singleton

17a

Appendix B

harassed other unidentified employees as well. /d. Plaintiff

stated that it was common for the nine or ten heavy hauling

department employees to “fill{ ] in” for the regular crane

operators when necessary, and Plaintiff had operated cranes

two to three times a week. Defendant’s Motion, Ex. A, at

35-36. There is no dispute that Plaintiffs doctor released

him to full duty after his March 1997 neck surgery, indicating

no job accommodations were considered medically

necessary. Defendant’s Motion, Ex. A, at 20. Plaintiff avers

in his responsive affidavit that he “begged John Singleton

to not make me drive the 75-ton road crane back from

Ardmore, and in doing so, I reemphasized that due to my

back and neck injuries that I did not believe I could handle

the assignment.” However, Plaintiffs deposition testimony

contradicts his affidavit. In his deposition, Plaintiff stated

that when he was ordered to drive the crane, he told his

supervisor “I didn’t need to be in the crane; I knew how to

drive it... [I]t was too rough,” and Plaintiff stated he did

not specifically inform Singleton that he was afraid he would

get hurt if he drove the crane. Defendant’s Reply Supplement,

at 52-53. Plaintiff does not explain the contradiction between

the statements in his affidavit and in his deposition testimony.

The facts were well within his knowledge at the time of

Plaintiff's deposition. Accordingly, Plaintiff has not created

a material issue of fact without his contradictory affidavit.

See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)

(“courts will disregard a contrary affidavit when they

conclude that it constitutes an attempt to create a sham fact

issue’”’).

Both Raymond Rigsby and Glen Chartney, who also are

employed in the heavy hauling department at OG&E,

18a

Appendix B

testified in depositions that they had driven the 75-ton road

crane. Chartney averred that he had worked for OG&E for

26 years and he had driven this crane 20 times. Rigsby

averred that he had worked for OG&E for eighteen years

and he had driven the crane at least 12 times a year. Both of

these employees testified that driving the crane was part of

their job, even when the regular crane operators were

available to drive the crane. Defendant’s Supplement to

Motion (Docs. 52, 53), Exs. E, F. There is nothing in the

Plaintiff's evidence to indicate that Plaintiff's age was a

motivating factor in determining his job responsibilities.

Plaintiff apparently believes special accommodations should

have been made as a result of his neck and back injuries, but

he fails to demonstrate that a disputed issue of fact exists

with regard to the motivation of the supervisor in refusing

to make these special accommodations. Plaintiff has not

shown a prima facie case of age discrimination as to the

allegations regarding his job responsibilities between April

and August 1997, because Plaintiff has not raised a disputed

issue of fact concerning the fourth requirement for an ADEA

claim of less favorable treatment than others not in the

protected class.

Plaintiff contends that his placement on short-term

employment disability in August 1997 was an adverse

employment decision motivated by age discrimination.

However, Plaintiff stated in his deposition that he reinjured

his neck on August 21, 1997, and avers in his affidavit that

his doctor placed him on a “light duty” work restriction on

August 25, 1997. Plaintiff stated in his deposition that doctors

never released him to return to his previous job after that

date. Defendant’s Motion, Ex. B, at 39-40. Moreover, it is

Ale I8) LAER SOG NEARER 5 8

19a

Appendix B

undisputed that Plaintiff understands that American F idelity

oversees and administers the disability program adopted for

OG&E employees, and that American Fidelity requested

information from Plaintiff and medical documents or

statements from Plaintiff's doctor during the two-year period

that he was on disability.

Plaintiff avers that on August 25, 1997, when he

provided Singleton with his doctor’s note reflecting he was

restricted to light duty, that Singleton conferred with

Singleton’s supervisor, Mr. Newton, and informed Plaintiff

that the company would “take your doctor’s recommendation

and put you on light duty.” Plaintiff's Response, Ex. 1, at 4.

Plaintiff avers he was then told to go home because Singleton

“did not have any light duty for me.” Jd. Plaintiff avers he

was allowed to work light duty for two days filling in for a

secretary who was on vacation but was told that he would

then “have to use disability leave until I was 100%.” Id.,

at 5. Plaintiff further avers that the paperwork was processed

by “[m]y supervisor and Belleva Johnson of the Human

Resources Department... .” Jd.

Although Plaintiff contends he was placed on light duty

work restrictions by his treating doctor only for two weeks,

there is ample uncontroverted evidence in the record

reflecting that after August 25, 1997, doctors who examined

Plaintiff concluded Plaintiff is unable to perform the

requirements of his previous heavy equipment operator

position. Defendant’s Motion, Exs. 3, 4; Supplement to

Defendant’s Motion (Doc. #31), Ex. 12. The only reasonable

inference that can be drawn from the evidence is that Plaintiff

was injured in August 1997, and because his doctor placed

20a

| Appendix B

him on light duty work restrictions and no light duty work

was available for an individual in Plaintiff’s position,

Plaintiff took employment disability in order to receive

continuing income and keep his job as long as possible.

Plaintiff contends that undue influence was placed on

him to take disability instead of filing a workers’

compensation claim. In response to Defendant’s Motion,

Plaintiff avers in his affidavit that Singleton told Plaintiff

that he “would not allow” Plaintiff to file a workers’

compensation claim” and that the company “was not going

to pay any workers’ compensation to me.” Plaintiff's

Response, Ex. 1. However, Plaintiff's responsive affidavit

contradicts his deposition testimony, in which Plaintiff stated

he never inquired about workers’ compensation and was

never told he could not file a workers’ compensation claim.

Defendant’s Reply, Ex. B, at 18, 27. Plaintiff does not attempt

to explain this contradiction, and the facts were well within

his personal knowledge ,at the time of his deposition.

Accordingly, Plaintiff has not presented a disputed issue of

fact concerning the fourth requirement for an ADEA claim

with his allegation that he was forced to take employment

disability benefits. See Franks, 796 F.2d at 1237.

Plaintiff next alleges that OG&E’s refusal to reinstate

him to his previous position on or about May 24, 1999,

supports his claim of age discrimination. Defendant moves

for summary. judgment as to this claim on the basis that

Plaintiff was not qualified for his previous position at the

time OG&E refused to reinstate him to that position. It is

not disputed that after August 21, 1997, Plaintiff was never

medically released to return to the full duties of his previous

2la

Appendix B

ANCES CA A II Dare CLS ai es

position as a heavy equipment operator. Accordingly,

Plaintiff has not demonstrated with this allegation that a

material issue of fact exists concerning the second

requirement for an ADEA claim.

Finally, Plaintiff stated in his deposition that he was

treated differently due to age discrimination based on the

Statements by Singleton that Plaintiff was “getting older”

and his “body was wearing out” and he “cculdn’t continue

to” perform heavy manual labor or sit ina “bouncing” truck.

Plaintiff conceded in his deposition that his doctor had also

stated to Plaintiff following his March 1997 neck surgery

that Plaintiff “could not continue very much longer hauling

and driving the semis and operating heavy equipment.”

Defendant’s Motion, Ex. A, at 43. The only reasonable

inference to be drawn from Singleton’s statement is that

Plaintiff's physical Capacity to perform the heavy demands

of his job was diminishing to the point that Singleton believed

Plaintiff needed to find lighter work.

Atay Ape oN OTE ei Coat ee abet eos aaa

eS ee

: Plaintiff does not point to any particular employment

action as being related to these alleged statements or even

allege when the statements were made. The statements

express Singleton’s personal opinion, and “{a]t most, such

statements [of personal opinion] provide circumstantial

evidence of discriminatory intent because they ‘require the

trier of fact to infer that discrimination was a motivating

cause of an employment decision.’ ” Stone, 210 F.3d at 1137

(quoting EEOC v. Wiltel, Inc., 81 F.3d 1508, 1514 (10th Cir.

1996)). In this case, Defendant strongly argues that Plaintiff

was no longer qualified for his position on August 25, 1997,

and thereafter because of work restrictions placed on him

22a

Appendix B

by his doctor and other examining physicians. Plaintiff

vehemently argues in response that on August 25, 1997,

Plaintiffs doctor placed only a 2-week light duty restriction

on Plaintiff. However, Plaintiff stated in his deposition that

he was never medically released to the full duties of his heavy

equipment operator position after August 25, 1997. Although

Plaintiff stated in his deposition that on August 25, 1997, he

was told to go home because no light duty was available at

that time, Plaintiff avers in his responsive affidavit that “there

was work that I could have performed for the specified time

and longer.” Plaintiff's Response, Ex. 1, at 5. Plaintiff

provides no evidence of any specific work that was available

to him with his work restrictions on or after August 25, 1997,

and it is not disputed that Plaintiff never applied for a

different position at OG&E. Even if there was light duty

work Plaintiff could have temporarily performed on or after

August 25, 1997, there is no evidence that Plaintiff could

have returned to the full duties of his previous job after that

date, and he has not presented a disputed issue of fact that

age discrimination was a motivating factor in any adverse

employment decision. Accordingly, Defendant is entitled to

summary judgment concerning Plaintiff's claim of age

discrimination under the ADEA.

Il. ERISA Claim

Defendant advances two reasons why it should be

granted summary judgment concerning Plaintiff's claim

under ERISA. Defendant contends that (1) American

Fidelity, and not OG&E, is the fiduciary over the disability

program adopted for OG&E employees, and therefore OG&E

cannot be sued under ERISA with regard to the decision to

23a

Appendix B

terminate Plaintiff's long-term disability benefits; and

(2) Plaintiff cannot pursue a claim under ERISA because he

failed to exhaust administrative remedies.

In the third ground of Plaintiff's Complaint, Plaintiff

alleges a violation of 29 U.S.C. §1140, a provision of ERISA

which makes it “unlawful for any person to discharge, fine,

suspend, expel, discipline, or discriminate against a

participant or beneficiary for exercising any right to which

he is entitled under the provisions of an employee benefit

plan, this subchapter, section 1201 of [title 29 U.S.C.], or

the Welfare and Pension Plans Disclosure Act [29 U.S.C.A.

§301 et seq.], or for the purpose of interfering with the

attainment of any right which such participant may become

entitled under the plan, this subchapter, or the Welfare and

Pension Plans Disclosure Act.” 29 U.S.C. §1140. In support

of this claim, Plaintiff alleges in the Complaint that he

“suffered permanent partial disability” as a result of a

job-related injury, that because of his disability he “qualified

for Defendant’s short-term and long-term disability insurance

plan and certain other employee benefit plans,” that

Defendant “initially extended such benefits to Plaintiff, but

intentionally failed to advise Plaintiff concerning Plaintiff's

right to return to work,” and when Plaintiff demanded to

return to work “Defendant continued to misrepresent certain

conditions so as to have Plaintiff believe that there was no

position for which Plaintiff could perform,” that “Defendant

possessed a substantial economic motive to terminate him

and so acted in order to deny Plaintiff certain employee

benefit plans.” Complaint, at 3.

24a

Appendix B

In order to be entitled to relief under 29 U.S.C. §1140,

Plaintiff “is required to prove, by a preponderance of the

evidence, that his discharge was motivated by an intent to

interfere with employee benefits protected by ERISA.”

Phelps v. Fields Real Estate Co., 991 F.2d 645, 649 (10th

Cir. 1993). Plaintiffs convoluted allegations and evidentiary

documents presented with regard to his ERISA claim provide

no direct evidence of discriminatory intent. He must, at the

very least, then, “introduce evidence that suggests

interference with ERISA rights was a motivating factor” in

his termination. Clark v. Coats & Clark, Inc., 990 F.2d 1217,

1223-1224 (11th Cir. 1993).

There is no dispute that OG&E’s employee disability

plan is governed by ERISA. See 29 U.S.C. §1003. However,

it is not employee disability benefits that Plaintiff contends

were denied through unlawful interference. Rather, in

Plaintiff's Response to Defendant’s dispositive Motion,

Plaintiff clarifies his ERISA claim. Plaintiff contends that

“OG&E had a duty to process Plaintiff's claim for worker’s

compensation, yet OG&E fraudulently misrepresented to

American Fidelity that the injury did not result from

Plaintiff's employment.” Plaintiff's Response, at 13-14.

In support of his claim of misrepresentation, Plaintiff

refers to a form that American Fidelity sent to OG&E and

that was completed by OG&E’s human resources

administrator on March 6, 1998, in which the administrator

responded “no” in response to the inquiry whether Plaintiff's

disability resulted from his employment. Plaintiff’s

Response, Ex. 5. However, Plaintiff stated in his deposition

that he wasn’t sure whether the back injury that resulted in

ep ic aR ea ea i a ar

: See

25a

Appendix B

his 1985 back surgery was caused by his employment, and

also stated that he did not file a workers’ compensation claim

for his 1997 neck surgery because he “didn’t want to make

waves.” Defendant’s Reply, Ex. B, at 16, 18. He further stated

in deposition testimony that no one ever told him not to file

a workers’ compensation claim and that he never even asked

about filing such a claim. Jd. at 18, 27. Plaintiff provides no.

support for his allegation that OG&E had a “duty” to file a

workers’ compensation claim for Plaintiff. The only duty

prescribed by Oklahoma law upon employers is the duty to

post a notice advising employees that they are covered by

the Workers’ Compensation Act and that workers’

compensation counseling services are available at the

Workers’ Compensation Court. Okla. Stat. tit. 85, §43

(1991). Plaintiff does not allege lack of such notice. Rather,

Plaintiffs deposition testimony reflects his knowledgeable

choice not to seek workers’ compensation benefits. Viewing

the evidence in the light most favorable to Plaintiff, there is

no material issue of fact as to whether OG&E interfered with

Plaintiff’s right to workers’ compensation benefits, and

Defendant is entitled to summary judgment on this claim.

Assuming that Plaintiff is also asserting an ERISA claim

under 29 U.S.C. § 1140 based on the termination of his

disability benefits, it is not disputed that Plaintiff applied

for and received short-term disability benefits for two years,

and that the disability program adopted by OG&E was

administered by OG&E’s disability carrier, American

Fidelity. It is not disputed that Plaintiffs request for

long-term disability benefits was denied by American

Fidelity. See Defendant’s Motion, Ex. D, at 27. Ina letter to

Plaintiff dated April 21, 1999, Plaintiff was advised by

26a

Appendix B

American Fidelity that his disability benefits would cease

after August 29, 1999. /d., at 27.

It is further not disputed that after August 25, 1997,

Plaintiff was never medically released to return to the full

duties of his position at OG&E. Curiously, although Plaintiff

alleges in his Response to Defendant’s Motion brief that

OG&E misrepresented to American Fidelity that Plaintiff

was eligible for disability benefits, Plaintiff inconsistently

alleges in his Complaint that he qualified for the disability

benefits provided by American Fidelity. Regardless of which

allegation is the one Plaintiff wishes to rely on, Plaintiff has

presented no evidence to support his bare conclusion of a

“misrepreseniation” by OG&E with regard to Plaintiff's

_eligibility for disability benefits. OG&E provides

uncontroverted evidence that the disability program was

wholly administered by American Fidelity and that the

decision to allow and to terminate Plaintiff's disability

benefits was wholly within the discretionary authority of

American Fidelity.

Plaintiff testified in his deposition that he understood

that his May 24, 1999 request for reinstatement to his

previous job was denied “[b]ecause there was no light duty

that I could perform” and because his doctors had not released

him for the full duties of his previous job. Defendant’s

Motion, Ex. B, at 5-6. Plaintiff conceded in his deposition

that he never applied for any other job at OG&E. /d., at 101.

The undisputed evidence shows Plaintiff was terminated after

American Fidelity determined that Plaintiff was no longer

entitled to receive disability benefits. Accordingly, there is

no material issue of fact as to whether OG&E unlawfully

NE Ta RE eT Tre reno errno nee ENTE

27a

Appendix B

interfered with Plaintiff's disability benefits, and OG&E is

entitled to summary judgment on this claim.4

III. State Law Tort Claim for Negligent or Intentional

Infliction of Emotional Distress

Defendant seeks Summary judgment concerning

Plaintiff's pendent state law claim for damages for negligent

or intentional infliction of emotional distress, contending that

the claim is either preempted by ERISA or the Oklahoma

Workers’ Compensation Acct, or that Plaintiff has not stated

sufficient facts to allege a claim of intentional or negligent

infliction of emotional distress.

In his Complaint, Plaintiff alleges that Defendant’s

“wrongful and intentional conduct . . . in harassing Plaintiff

and in subjecting Plaintiff to disparate treatment” because

of his age, including “represent[ing] to Plaintiff that he was

still being carried as an employee of the Defendant due to

his on the job injury, when in fact the Defendant had

terminated” Plaintiff, has caused Plaintiff to suffer mental

and emotional stress. However, in response to Defendant’s

dispositive Motion, Plaintiff makes different allegations in

support of his claim of negligent or intentional infliction of

emotional distress. These new allegations relate solely to

the work-related “order[ ]” from Plaintiff's supervisor,

4. It is not necessary to determine whether or not OG&E is a

fiduciary of the long-term disability benefit program adopted by

OG&E for its employees or whether or not Plaintiff exhausted

administrative remedies. Plaintiff does not seek benefits under the

_program, but alleges OG&E interfered with his right to receive those

benefits under 29 U.S.C. §1140.

28a

Appendix B

Singleton, to drive the 75-ton road crane in August 1997.

Plaintiff contends that this work assignment was so

“tempered with evil intent” that it “intentionally placed the

life of Plaintiff in grave and unnecessary jeopardy.”

Plaintiff's Response, at 18.

In Eddy v. Brown, 715 P.2d 74 (Okla. 1996), the

Oklahoma Supreme Court reaffirmed that the state recognizes

the tort of intentional infliction of emotional distress and

that the tort “is governed by the narrow standards of §46

Restatement of Torts (Second) [1997].” Jd. at 76. The

Restatement establishes that “ ‘[o]ne who by extreme or

outrageous conduct intentionally or recklessly causes severe

emotional distress to another is subject to liability for such

emotional distress, and if bodily harm to the other results

from it, for such bodily harm.’ ” Jd. (quoting §46 Restatement

of Torts (Second)). In analyzing a tort claim under this

standard, “[i]t is the trial court’s responsibility initially to

determine whether the defendant’s conduct may reasonably

be regarded as sufficiently extreme-and outrageous to meet

the §46 standards. Only when it is found that reasonable

[persons] would differ in an assessment of this critical issue

may the tort-of-outrage claim be submitted to a jury....

Conduct which, though unreasonable, is neither ‘beyond all

possible bounds of decency’ in the setting in which it

occurred, nor is one that can be ‘regarded as utterly

intolerable in a civilized community,’ falls short of having

actionable quality.” Jd., at 76-77 (footnote omitted).

Preliminarily, Plaintiff describes intentional conduct by

his supervisor but the heading given to this particular

argument identifies his claim as being one for “intentional

29a

Appendix B

or negligent infliction of mental and/or emotional distress.”

Plaintiff Complaint, at 2. In Oklahoma, “accidental injuries

arising out of and in the course of employment” which are

“reasonably connected with the conditions of employment”

are compensable solely through the Oklahoma Workers’

Compensation Act. Okla. Stat. tit. 95, §3(7) (1991).

Defendant asserts in its Reply that Plaintiff's claim for

negligent injury resulting from driving the road crane is

barred by the Oklahoma Workers’ Compensation Act.

“An on-the-job injury ‘arises out of employment only if

(1) a causal connection exists between the conditions under

which the work was required to be performed and the

resulting injury, and (2) the injury resulted from a risk

reasonably incident to the employment.” Decker v. Oklahoma

State University, 766 P.2d 1371, 1374-1375 (Okla. 1988).

Plaintiff clearly alleges that his injuries were caused by the

conditions under which he was required to work, and the

risk of a neck injury in Plaintiff's heavy equipment operator

position is certainly “reasonably incident to the

employment.” Consequently, Plaintiff’s sole remedy for

negligent injury under the facts alleged by Plaintiff is the

Oklahoma Workers’ Compensation Act. See Oklahoma City

v. Schoonover, 535 P.2d 688, 691 (Okla. 1975) (emotional

Stress engendered by working conditions and nature of

employment and accompanied by accidental injury is

compensable under workers’ compensation program).

Plaintiff avers in his responsive affidavit that when

Singleton ordered him to drive the 75-ton road crane, he

“begged John Singleton to not make me drive the 75-ton

road crane back from Ardmore, and in doing so,

30a

Appendix B

I reemphasized that due to my back and neck injuries that I

did not believe I could handle the assignment.” Plaintiff's

Response, Ex. 1, at 3.

Plaintiff's affidavit statements vary considerably from

his deposition testimony concerning this incident. In his

deposition, Plaintiff stated that he

told John that I didn’t think I should be in it, that

I knew how to run it. And he said, “You need the

experience and you’re going to drive it.” And I

said, “I know how to drive it.” He said, “You’re

being paid top pay to do everything. You will

drive it back from Ardmore.”

Defendant’s Reply, Ex. B, at 42. Plaintiff also stated in his

deposition that driving cranes was part of the job for all of

the employees in the heavy hauling division at OG&E, and

that his treating physician had placed no restrictions on his

ability to work following his March 1997 neck surgery, even

though his physician was aware of the requirements of his

position, including driving and operating cranes. /d., at 42-44.

Other OG&E employees in the heavy hauling division have

testified that driving cranes, including the 75-ton road crane,

is a normal part of the job. Defendant’s Supplemental

Exhibits E, F.

In Plaintiff's deposition, he did not testify that he alerted

his supervisor to any physical-related difficulty with driving

the road crane. His deposition testimony concerning his

supervisor’s statements certainly do not reflect “evil intent”

to cause Plaintiff physical harm. Rather, the supervisor’s

3la

Appendix B

remarks indicate the supervisor ordered Plaintiff to drive the

crane for two solely job-related reasons: (1) Plaintiff needed

experience in driving the crane, and (2) Plaintiff was being

paid the higher salary of a heavy equipment operator, and

thus he was expected to drive all of the heavy equipment

when needed. Reasonable persons would not differ in their

assessment of the Plaintiff's deposition testimony, and there

is no material disputed fact regarding the claim of intentional

infliction of emotional distress asserted by Plaintiff.

Reasonable persons would not find that the action of

Plaintiff's supervisor in ordering him to drive the road crane

on August 21, 1997, was so extreme or outrageous as to

subject Defendant to liability for intentional infliction of

emotional distress under the standard employed in Oklahoma

for such a claim. Thus, Defendant is entitled to summary

judgment on this claim.

V. Claim for Retaliation

Plaintiff's final claim asserted in the Complaint is a claim

for retaliation for protected activity under 29 U.S.C. §623(d)

of the ADEA. Plaintiff alleges that following his deposition

testimony in Riffel’s age discrimination suit, Plaintiff

experienced different treatment, including intensified

harassment, intentional infliction of emotional distress, and

termination. Defendant moves for summary judgment on this

claim.

In his Response to the motion, Plaintiff alleges that

within two months of his deposition against OG&E in

Riffel’s age discrimination case, Plaintiff suffered these

specific reprisals: he was denied a light duty assignment, he

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Appendix B

was denied an air-ride-suspension truck, his health was

jeopardized by requiring him to drive the 75-ton road crane,

he was denied the right to file a workers’ compensation claim

regarding the injury that occurred on August 21, 1997, he

was denied the right to work for two weeks in a light duty

assignment, and in his Complaint he alleges that his

termination was in retaliation for the deposition testimony.

The ADEA makes it unlawful to retaliate against an

employee for engaging in certain protected activities,

including testifying, assisting, or participating in any manner

in litigation under the ADEA. 29 U.S.C. §623(d). The

familiar McDonnell Douglas burden-shifting analysis is

generally employed in reviewing an ADEA retaliation claim.

Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th

Cir. 1998). Under this approach, the plaintiff must first

establish a prima facie case of retaliation by showing

“(1) protected opposition to discrimination or participation

in a proceeding arising out of discrimination; (2) adverse

action by the employer contemporaneously or subsequent to

the employee’s protected activity; and (3) a causal connection

between such activity and the employer’s action.” /d. If the

plaintiff establishes a prima facie case, the burden of

production shifts to the defendant who must articulate a

legitimate, nondiscriminatory reason for the adverse action.

Id. “Once the defendant has dispelled the inference of

retaliation by establishing a legitimate reason, ‘the plaintiff

may still prevail if she demonstrates the articulated reason

was a mere pretext for discrimination.’ ” Jd. (quoting Burrus

v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343

(10th Cir., cert. denied, 459 U.S. 1071 (1982)).

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Appendix B

The undisputed facts reveal that on June 6, 1997, Plaintiff

testified in a deposition on behalf of Riffel, who had sued

OG&E in this Court under the ADEA. Defendant’s Reply,

Ex. A. On July 31, 1997, United States District Judge Wayne

E. Alley entered summary judgment in favor of OG&E in

the Riffel case. Defendant’s Motion, Ex. H. No mention was

made of Plaintiff's deposition in this order. The order of the

Tenth Circuit Court of Appeals in Riffel’s appeal of the

summary judgment was entered on March 31, 1998. In the

Tenth Circuit’s order, the appellate court mentioned for the

first time the deposition of Plaintiff on behalf of Riffel. The

appellate court concluded that this testimony constituted

some direct evidence of age discrimination against Riffel

and reversed Judge Alley’s entry of summary judgment. Any

actionable retaliation of Plaintiff under the ADEA could not

have occurred prior to June 6, 1997, as that was the date on

which Plaintiff was deposed in the Riffel matter.’ Defendant

does not question whether or not the deposition involved

protected activity, and the evidence is indisputable that the

Plaintiff's deposition testimony was protected activity within

the meaning of 29 U.S.C. §623(d).

Plaintiff identifies several allegedly adverse employment

actions. However, Plaintiff does not specifically allege who

denied him a “light duty assignment” or when this action

occurred. It is not disputed that other members of Plaintiff's

heavy equipment operator work group had previously been

temporarily placed on light duty following various injuries.

However, there is no evidence all employees in Plaintiff's

5. Although Plaintiff alleges in his responsive brief that he was

listed as a witness in Riffel in October 1996, Plaintiff does not allege

with particularity that this listing caused any retaliatory actions.

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Appendix B

work group received “light duty” assignments following

injuries. Plaintiff returned to work following neck surgery

in April 1997. Plaintiff testified in his deposition that he

was placed on light duty for two days when he returned from

neck surgery. Defendant’s Motion, Ex. A, at 27. Plaintiff

testified he had previously been placed on light duty after

back surgery and foot surgery, and the light duty assignment

following his back surgery lasted for “maybe a month.”

Defendant’s Motion, Ex. B, at 94, 96. Plaintiff testified that

another co-worker, Rick Brakebill, was given a light duty

assignment for “probably a week” following an injury, that

another co-worker, Ray Pierce, was given light duty for “a

couple of weeks” following his injury, that Tom Howard

was given light duty for “a couple of weeks” after an injury,

and that Don Riffel was given light duty for “a little over a

month” after an injury. Defendant’s Motion, Ex. B, at 81-84,

93. Plaintiff's return to work preceded his deposition

testimony by two months, and Plaintiff did not report any

work-related injury until August 25, 1997, four months after

he returned to work. Plaintiff testified that his physician had

placed no restriction on his ability to perform his usual heavy

equipment position following the March 1997 neck surgery.

Defendant’s Motion, Ex. A, at 20-21.

No retaliatory inference can be gleaned from Plaintiff's

allegation concerning the “denial of a light duty assignment”

given Plaintiff's own deposition testimony reflecting the

absence of medical restrictions placed on Plaintiff and the

discretionary nature and short length of “light duty” -

assignments given other co-workers.

Plaintiff next alleges that the “denial of air-ride-

suspension truck” supports his retaliation claim. Plaintiff

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Appendix B

avers in his responsive affidavit that Tom Howard and

“Breakbill” are assigned to trucks equipped with air-ride-

suspension. However, again, Plaintiff makes no specific

allegations as to when the “denial” occurred or who

participated this alleged adverse action. Plaintiff also does

not allege that such an accommodation was given to other

co-workers as a result of an injury. In Plaintiff's deposition

testimony, he stated that no work restrictions were placed

on him by his treating physician after his March 1997 neck

surgery. There is substantial evidence that operating heavy

equipment such as cranes was a normal part of Plaintiff's

) Job as well as the jobs of other OG&E employees having the

same position as the Plaintiff. Under these circumstances,

no inference of retaliation is shown by Plaintiff's allegation

of a “denial of air-ride-suspension truck.”

Plaintiff next alleges that retaliation is shown by

Singleton’s order to Plaintiff to drive the 75-ton road crane.

Plaintiffs deposition testimony, discussed hereinabove,

concerning the reasons given by Singleton for the directive

to drive the crane, does not create any inference of retaliation.

Plaintiff testified that driving cranes was a normal part of

his job and all of the employees in his division were expected

to “fill [] in” for the two regular crane operators when

necessary and that he had previously driven this particular

road crane with no physical repercussions. Moreover,

summary judgment had been granted in OG&E’s favor

immediately prior to this work directive, and Plaintiff does

not present any facts from which it can be inferred that

Singleton was even aware of Plaintiff's deposition testimony.

See Shinwari v. Raytheon Aircraft Co., No. 98-3324, 2000

WL 731782, *7 (10th Cir. June 8, 2000) (“protected activity

36a

Appendix B

cannot bear a causal relationship to adverse action if those

taking the action were unaware of the existence of the

protected activity”).

Plaintiff's allegation that he was “denied the right to

file a workers’ compensation claim” contradicts his

deposition testimony, and therefore this allegation does not

create an issue of fact. Plaintiff's deposition testimony, in

which he stated he had never inquired into or been denied

the right to file a workers’ compensation claim, creates no

inference of retaliation.

Plaintiff next alleges that he was denied the right to work

for two weeks in a light duty assignment following the

August 21, 1997 injury. Plaintiff points to his doctor’s

statement dated August 26, 1997, that Plaintiff was restricted

to light duty work for two weeks. Plaintiff's Response,

Ex. 7, at 2, Plaintiff avers in his responsive affidavit that he

took this doctor’s note to Singleton, Singleton discussed the

note with his supervisor, Mr. Newton, Singleton then advised

Plaintiff that OG&E would accept the doctor’s restriction

and place Plaintiff on light duty, and because “he did not

have any light duty for me” Plaintiff was sent home that

day. Plaintiff's Resporise, Ex. 1, at 4. Although Plaintiff

testified in his deposition that some co-workers had been

placed on light duty assignments following injuries, his

deposition testimony clearly showed that such assignments

were extended to some employees for short periods of time

within the discretion of the supervisor of the heavy equipment

division. Plaintiff's testimony and affidavit reflect that at

most he may have had a subjective expectation that he would

be placed on light duty. There is no evidence sufficient to

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Appendix B

create any inference of a causal connection between the

alleged adverse employment action of not placing Plaintiff

on light duty following his August 21, 1997 injury and his

deposition testimony in the Riffel case. Again, Plaintiff does

not allege that Singleton was aware of the deposition

testimony, and none of Singleton’s statements, as testified

to by Plaintiff, indicate Singleton’s awareness of Plaintiff's

assistance in Riffel.

Plaintiff alleges in his Complaint that his termination

also supports his claim of retaliation under the ADEA.

Plaintiff does ‘not renew this allegation in response to

Defendant’s disposition Motion. In Plaintiff's deposition,

Plaintiff testified that his request to be reinstated to his

previous job was denied on or about May 24, 1999, because

there was no work he could perform with his medical

restrictions. Defendant’s Motion, Ex. C, at 100; Defendant’s

Reply, Ex. B, at 5. Although Plaintiff testified there were

jobs at OG&E that could have been performed with his

medical restrictions, Plaintiff conceded that he had never

applied for any other jobs at the company and did not know

if any jobs were open at the time his request for reinstatement

was denied. Defendant’s Motion, Ex. C, at 101. Plaintiff also

conceded that at that time he had not been released for “full

duty” by his physician. /d. at 5-6. In fact, Plaintiff testified

in his deposition that after he went on disability, his

supervisor, Mr. Singleton, had telephoned him and “said they

were looking for a position that I could do” with Plaintiff's

medical restrictions, but Plaintiff never called him back.

Defendant’s Reply, Ex. B, at 102. The Tenth Circuit’s

decision in the Riffel matter was entered in May 1998, a year

before Plaintiff's request for reinstatement was denied.

38a

Appendix B

No discriminatory animus can be inferred from the adverse

employment action. There is no evidence of statements or

conduct indicating a causal connection between Plaintiff's

request for reinstatement and the appellate court decision in

Riffel. Accordingly, Defendant is entitled to summary

judgment on Plaintiff's retaliation claim.

Based on the foregoing reasons, Defendant’s Motion for

Summary Judgment (Doc. #26) is GRANTED. Judgment

shall issue accordingly.

IT IS SO ORDERED this 17th day of July, 2000.

s/ Gary M. Purcell

GARY M. PURCELL

UNITED STATES MAGISTRATE

JUDGE

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