Goff v. Salazar Roofing & Const., Inc.

242 P.3d 604

Marilyn Sue GOFF, Plaintiff/Appellant,

v. SALAZAR ROOFING & CONSTRUCTION, INC., an Oklahoma Corporation, and Robert Maulpin, individually, a/k/a Robert Maupin, Defendants/Appellees,andSalazar Roofing & Construction USA, Inc., an Oklahoma Corporation; and/or a/k/a and/or d/b/a Salazar Roofing Corporation, an Oklahoma Corporation; and/or a/k/a and/or d/b/a d/b/a Salazar Contracting, Inc., an Oklahoma Corporation, Defendants.

No. 107,722.

Court of Civil Appeals of Oklahoma, Division No. 4.

Sept. 24, 2010.

Appeal from the District Court of Canadian County, Oklahoma; Honorable Edward C. Cunningham, Trial Judge.

AFFIRMED IN PART, REVERSED IN PART.

Michael L. Velez, Michael L. Velez, LLC, Oklahoma City, OK, and Jacque Bergman-Pearsall, Jacque Pearsall, P.L.L.C, Oklahoma City, OK, for Appellant.

Warner E. Lovell, Oklahoma City, OK, for Appellees.

JERRY L. GOODMAN, Judge.

¶ 1 Marilyn Sue Goff (Goff) appeals the trial court's October 7, 2009, order granting Salazar Roofing & Construction, Inc. (Salazar) and Robert Maupin's (Maupin) (collectively "Appellees") motion for summary judgment. ¹ Goff further appeals a December 4, 2009, order awarding Appellees an attorney's fee and costs in the amount of $15,755.09. Based upon our review of the facts and applicable law, we affirm in part and reverse in part.

FACTS

¶ 2 In September of 2008, Salazar hired Goff, purportedly by its agent or employee Maupin, to work in its Norman satellite office as a secretary. Goff and Maupin were the only employees located in the Norman office. After working in the office for several weeks, an incident occurred between Goff and Maupin on November 6, 2008, resulting in Goff's employment ending with Salazar. The parties dispute whether Goff was terminated. Goff filed suit against Appellees pursuant to the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12111 et seq.² She further asserted claims for assault, negligent hiring, training, and supervision of Maupin, and intentional infliction of emotional distress.

¶ 3 Goff alleged that after her employment with Salazar began, Maupin started acting in an increasingly intimidating, demeaning, and erratic manner towards her, saying things like "What's up dog?" or "What's up, girl dog." Goff noted she is diabetic, she has to eat at regular intervals throughout the day, and that Maupin demeaned and humiliated her about eating and the smell of her food, stating "God that stinks. What is that? Man that stinks." ³ On one occasion, Goff, her husband, and her grandson were eating fried chicken in the office. Maupin came in and said "What's that smell? It stinks. What stinks?" Goff admitted no one prevented her from eating multiple times throughout the day, although she tried to eat when Maupin was out of the office.

¶ 4 On the morning of November 6, 2008, Maupin arrived at the office and said,"What's up, girl dog." Goff did not respond. After a while Maupin asked Goff if she was okay. A few minutes later, Maupin stated "Look, why don't you just take the rest of the day off? Just go home. Just get the f* * * out and don't come back." Goff was stunned. Maupin continued, "Look, I don't have to take your shit, I don't have to take your attitude. You're not going to treat me like this and get away with it. I got you this job." Maupin then drew his left fist back and Goff stepped back around the desk, twisting her back, causing immediate pain. Goff did not fall down, bump, or hit anything. In addition, Maupin did not hit or otherwise touch Goff. Maupin left the office.

¶ 5 Goff contacted the Norman office and told them Maupin had fired her. Goff also contacted her husband and told him the events of the morning. Goff called the Norman office again and spoke with another person, whom she also told Maupin had fired her. Maupin then returned to the office and asked her again if she was okay. Goff informed Maupin she was not okay. Maupin asked her to stay and explained he had been upset earlier because of a client who refused to pay. Goff was thrilled because she thought she had her job back. Maupin left again. Goff contacted the Norman office and informed them she had been rehired. When Maupin returned, he and Goff's husband had a verbal altercation in the parking lot over Goff and Maupin's earlier quarrel. Goff gathered up her belongings and left, subsequently filing suit against Appellees.

¶ 6 On April 1, 2009, Appellees filed a motion for summary judgment or in the alternative a motion to dismiss, asserting, inter alia, that Goff had failed to allege a disability under the ADA or that her impairment was the basis or cause of her injury or damages. Goff filed a response on April 16, 2009, asserting material questions of facts remained precluding summary judgment. Goff contended a rational juror could find she has a disability, i.e., her complications from diabetes cause her to be disabled under the ADA, and Salazar discriminated against her when it terminated her employment. Goff requested the court hold its ruling in abeyance pending additional discovery.

¶ 7 After discovery was completed, Appellees filed a motion to dismiss for lack of jurisdiction and a renewed motion for summary judgment on August 13, 2009. Appellees asserted Goff's suit falls within the purview of the workers' compensation laws, more specifically 85 O.S.2001 and Supp.2006, § 11, because Goff alleged she sustained an injury to her back at work. In addition, Appellees asserted none of the exceptions in § 11(A) applied and thus, Goff was not entitled to seek relief in district court.

¶ 8 With respect to its summary judgment motion, Appellees again asserted Goff could not prove a disability under the ADA or that her physical impairment formed the basis which she claims caused her injury or damages. Appellees noted Goff alleged her diabetes caused her to have a disability in the nature of having to eat at regular intervals and having pain in her feet and legs when required to stand for prolonged periods of time. However, Goff testified in her deposition that Appellees permitted her to bring food to work and that no one prevented her from eating on the job. In addition, Goff testified her job as a secretary allowed her to sit to fulfill her duties. Moreover, Goff never described the events leading up to the purported termination on November 6 to include her alleged disability as a cause or factor.

¶ 9 Goff filed a response on August 31, 2009, asserting a question of fact existed as to whether an exception existed under § 11(A). With respect to her ADA claim, Goff again asserted a material question of fact existed as to whether her diabetes was a disability and whether Appellees discriminated against her on the basis of this disability. Thus, Goff asserted summary judgment was inappropriate.

¶ 10 By order dated October 7, 2009, the trial court granted Appellees' motion to dismiss for lack of jurisdiction "[s]ubject to [Goff's] right to file a claim in the Workers' Compensation Court.... [I]n the event that the Workers' Compensation Court ... does not accept jurisdiction of [Goff's] claim pertaining to her alleged injuries of November 6, 2008 and following, [Goff] shall be entitled to revive her claim for assault and intentional infliction of emotional distress in this Court."The court further granted Appellees' motion for summary judgment on Goff's cause of action for a violation of the ADA "[f]or the reason that the facts of this case when given the weight most favorable to [Goff] does not bring [Goff's] claim against [Appellees] within the scope of the [ADA] of 1990. The Court finds [Goff] was either not disabled and/or did not suffer any adverse employment action as defined by the [ADA] of 1990." The trial court subsequently entered an order awarding Appellees' an attorney's fee and costs in the amount of $15,755.09. Goff appeals.

STANDARD OF REVIEW

¶ 11 We review the award of summary judgment de novo, giving no deference to the trial court's legal rulings. Copeland v. Lodge Enters., Inc., 2000 OK 36, ¶ 8 fn. 11, 4 P.3d 695, 699 fn. 11. Summary judgment is only appropriate when the pleadings, affidavits, depositions, admissions and other evidentiary materials establish there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Id. at ¶ 8, 4 P.3d at 699.

ANALYSIS

¶ 12 On appeal, Goff contends the trial court erred in granting Appellees' summary judgment on her ADA claim because the issue of whether she has a disability and whether Appellees discriminated against her based on this disability is a question of fact to be decided by the trier of fact.⁴

I. Americans With Disabilities Act

¶ 13 A plaintiff alleging employment discrimination under the ADA bears the initial burden of establishing a prima facie case. Cody v. County of Nassau, 577 F.Supp.2d. 623, 637 (E.D.N.Y.2008). To establish a claim under the ADA, Goff must establish the following: 1) she is a disabled person within the meaning of the ADA; 2) she is qualified to perform the essential functions of the job with or without a reasonable accommodation; ⁵ and 3) she suffered an adverse employment action because of her disability. Id., see also Diaz Rivera v. Browning-Ferris Indus. of Puerto Rico, Inc., 626 F.Supp.2d. 244, 254 (D.P.R.2009); Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir.2000).

¶ 14 If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to offer a legitimate, non-discriminatory reason for its actions. Cody, 577 F.Supp.2d. 623, 637 (citations omitted). The employer merely needs to explain what it has done. Id. (citations omitted). "Should the employer satisfy its burden, the analysis is complete and 'the presumption [of discrimination], having fulfilled its role of forcing the defendant to come forward with some [non-discriminatory] response, simply drops out of the picture.' " Id. (citations omitted). The "ultimate burden"...