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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 1055

## Text

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,
v.
OKLAHOMA GAS & ELECTRIC COMPANY,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

a

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

i
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.

il

TABLE OF CONTENTS

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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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15

20

21

23

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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

iv

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

2

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.

3

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.

4

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.

5

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.

6

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.

7

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.

8

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.

3
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.

10
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.

11

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”

12

’

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)

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4
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;

13

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)

14

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)

1S

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.”

16

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

17

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.,

18

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)

19

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).

20

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

21

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

22

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

23

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

la

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,
v.
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.

2a

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”).

3a

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

4a

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,

Sa
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

6a

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

7a

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).

8a

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.

9a

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

oO

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

i

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

32a

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)).

33a

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.

34a
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

an

35a

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

37a

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2546%3A1. Public record. Not legal advice.