Myers v. Knight Protective Service, Inc. ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
December 22, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ALPHONSO MYERS,
Plaintiff ! Appellant,
v. No. 12-6056
KNIGHT PROTECTIVE SERVICE,
INC.; WILLIAM THOMPSON, an
individual,
Defendants ! Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:10-CV-00866-C)
Submitted on the briefs: *
Scott F. Brockman of Ward & Glass, LLP, Norman, Oklahoma; Ken Feagins of
Winningham, Stein & Basey, Oklahoma City, Oklahoma, for Plaintiff-Appellant.
Angela Caywood Jones and John M. Nelson, of Park, Nelson, Caywood, Jones,
LLP, Chickasha, Oklahoma, for Defendant-Appellee William Thompson.
Before GORSUCH, O’BRIEN and PHILLIPS, 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.
GORSUCH, Circuit Judge.
After Alphonso Myers suffered a workplace injury, he sought and obtained
social security disability benefits on the ground that he was unable to work. But
while claiming as much before the Social Security Administration it turns out
Mr. Myers was also applying for and winning a job as an armed security guard
with Knight Protective Service. As part of the application process, Knight asked
Mr. Myers a number of questions about his physical condition. Each time,
Mr. Myers said he suffered no relevant disabilities. These answers, he now
admits, were false.
Soon enough one of Mr. Myers’s supervisors, William Thompson, noticed
that Mr. Myers seemed to be in pain. When Mr. Thompson asked if he was
alright, Mr. Myers confided that he had undergone a number of neck and back
surgeries and that he experienced recurring pain. Mr. Thompson grew concerned
that Mr. Myers wasn’t up to the job of an armed guard, that someone might grab
Mr. Myers’s weapon or, even worse, take him hostage. Mr. Thompson told
Mr. Myers that he couldn’t return to work without passing a physical
examination. Mr. Myers waited months, expecting the company to schedule the
exam. But that never happened. As Mr. Myers saw it, he was effectively
terminated and he decided to sue.
-2-
In this suit, Mr. Myers alleged that Knight and Mr. Thompson engaged in
race and disability discrimination and committed various torts. The district court,
however, dismissed some claims and granted summary judgment to the defendants
on the rest. Mr. Myers now appeals, asking us to revive his claims of federal
discrimination against the company and tortious interference with contract or
business relations against Mr. Thompson.
Invoking the Americans with Disabilities Act, Mr. Myers alleges that
Knight discriminated against him on the basis of his physical disabilities. See
42 U.S.C. § 12112(a). He also claims the company violated Title VII by firing
him on account of his race. See id. § 2000e-2(a)(1). But to make out a
discrimination claim under the ADA, an employee must, among other things,
show he is “qualified, with or without reasonable accommodation, to perform the
essential functions of the job.” EEOC v. C.R. England, Inc., 644 F.3d 1028, 1037
(10th Cir. 2011) (internal quotation marks omitted). Absent direct evidence of
discrimination, a Title VII plaintiff similarly must show he is “qualified for the
position at issue.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.
2012).
This much Mr. Myers cannot do. As he acknowledged in his written
employment application with Knight, the essential functions of his job as an
armed security guard required him to engage in frequent and prolonged walking,
standing, and sitting; to react quickly to dangerous situations; to subdue violent
-3-
individuals; and to lift heavy weights. Yet in representations Mr. Myers made to
the Social Security Administration he conceded that during the period in question
he was in pain all the time, could stand for only twenty minutes, and could walk
for just ten or fifteen minutes. Sometimes, Mr. Myers told the agency, his pain
was so severe that he needed to stay at home and lie down. It’s undisputed, too,
that since 2005 he’s been unable to lift more than ten pounds.
To be sure, we won’t always find a discrimination claim barred because an
individual applies for or receives social security benefits. See Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795, 805 (1999). But when a plaintiff makes
seemingly inconsistent statements like those before us he must offer a “sufficient
explanation” for the apparent contradiction. Id. at 806. That Mr. Myers has
failed to do. Neither, in any event, has he offered any competent evidence to
support his allegation of disparate treatment on the basis of race. As the district
court recognized, a plaintiff’s unsupported allegations of disparate treatment are
not enough to establish a triable claim. See Cone v. Longmont United Hosp.
Ass’n, 14 F.3d 526, 530 (10th Cir. 1994).
Mr. Myers complains that the district court failed to address his “cat’s paw”
theory that Mr. Thompson bore unlawful animus against him and influenced his
supervisors’ decision to terminate him. See generally Lawrence v. Sch. Dist. No.
1, 560 F. App’x 791, 795-96 (10th Cir. 2014). But our review of the record
reveals that the district court didn’t address the theory because it wasn’t fairly
-4-
presented. In any event, we don’t arrive at the point in the analysis where the
theory might become relevant: as we’ve explained, Mr. Myers failed to establish
even a prima facie case of discrimination by anyone. Neither, for that matter, has
he produced evidence that might allow a reasonable factfinder to draw the
inference that Mr. Thompson bore any unlawful animus. The only reasonable
interpretation of Mr. Thompson’s actions available on this record is that he was
concerned about protecting his employer’s interests.
That observation disposes as well of the tortious interference claim against
Mr. Thompson. As the district court observed, under Oklahoma law an employee
alleged to have tampered with a contract between his principal and the plaintiff
can be held liable only for acting outside the scope of his employment to further
his own interests. See Martin v. Johnson, 975 P.2d 889, 896-97 (Okla. 1998).
And here, again, the evidence before us fails to suggest anything along those
lines.
The motion to seal certain medical records is granted. The judgment of the
district court is affirmed.
-5-