United States District Court, D. Kansas
JACOB A. CRUMPLEY, Plaintiff,
ASSOCIATED WHOLESALE GROCERS, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
Jacob Crumpley has a seizure disorder. He alleges that
defendants Associated Wholesale Grocers (“AWG”)
and Clarence M. Kelley and Associates, Inc.
(“CMKA”) took adverse employment actions against
him because of his seizure disorder and thus violated the
Americans with Disabilities Act, as amended, 42 U.S.C. §
12101 et seq. (“ADA”). Specifically,
plaintiff alleges that defendants discriminated against him
because of his seizure disorder and retaliated against him
for opposing the discrimination practiced against him.
matter is before the court on four motions. Plaintiff has
filed two motions-a Motion to Exclude Certain Opinion
Testimony of Dr. Jeffery Kaplan and Dr. Michael Seeley (Doc.
177) and a Motion for Partial Summary Judgment (Doc. 175).
And each defendant has filed a Motion for Summary Judgment
(Docs. 179 & 181).
motions, plaintiff seeks to exclude certain opinion testimony
by Dr. Jeffery Kaplan and Dr. Michael Seeley-two of his
treating neurologists. In a separate Motion for Partial
Summary Judgment, plaintiff argues that his seizure disorder,
as a matter of law, is a “disability” as the ADA
defines that term.
defendants argue that they are entitled to summary judgment
against all plaintiff's claims because he has failed, as
a matter of law, to establish discrimination or retaliation.
AWG also argues that it was not plaintiff's employer and
the court thus cannot hold it liable on plaintiff's
the court's ruling on plaintiff's Motion to Exclude
Certain Testimony affects the facts comprising the summary
judgment facts, the court begins with that motion. For the
reasons discussed below, the court grants in part and denies
in part plaintiff's Motion to Exclude Certain Testimony.
Plaintiff's Motion to Exclude Certain Opinion Testimony
of Dr. Jeffery Kaplan and Dr. Michael Seeley (Doc.
Dr. Jeffery Kaplan and Dr. Michael Seeley are board-certified
neurologists. Dr. Kaplan has been practicing neurology since
1991. Dr. Seeley has been practicing neurology since 1995.
Individually, they have treated hundreds of patients with
has a seizure disorder. Generally, this disorder causes him
to experience seizures every three to six months. During past
seizures, plaintiff has been unconscious for as long as 45
seconds. He characterizes the period after unconsciousness as
“coming to, ” and he explained that it can take
him up to five minutes to “come around.” Doc.
183-2 at 4 (Crumpley Dep. 10:1-6). Sometimes, plaintiff does
not sense any warning that he is about to experience a
Dr. Kaplan and Dr. Seeley have treated plaintiff for his
seizure disorder. They treated him before, but not during,
the period at issue in this lawsuit. During the treatment for
his seizure condition, plaintiff's treating neurologists
warned him about standard seizure precautions. These
precautions warned that he should not drive a vehicle, work
at certain heights, or work alone or be alone for extended
periods of time during the six months after a seizure. The
neurologists explained that people are more likely to have
another seizure during the six months after a seizure. So,
these precautions were designed to decrease plaintiff's
risk of serious, adverse events that another seizure might
pose. Because of the seriousness of the risk, driving within
six months after a seizure is one of the most important
agrees that it is dangerous for him to drive a car in the six
months after he has had a seizure. He understands he might
crash the car and hurt himself or others. But plaintiff did
not comply with the directives from his physicians against
driving a vehicle because he needed to work and had no other
way to get to work.
Dr. Kaplan and Dr. Seeley advised plaintiff of their
understandings of the Kansas and Missouri vehicle laws
governing a person who experiences seizures. Specifically,
Dr. Seeley told plaintiff about the seizure precautions,
including no driving within six months, and he even displays
posters in his office about the illegality of driving in both
Kansas and Missouri. Dr. Kaplan strictly cautioned plaintiff
that it was illegal to drive during the six months after a
seizure, and that he could “seriously hurt or even kill
someone if he were to have an episode or seizure while
driving.” Doc. 180-3 at 9 (Kaplan Dep. 51:23-52:5).
Kaplan opined that plaintiff should not drive at all unless
he has seizure surgery and is seizure-free for two years. He
also opined that during the six months after a seizure,
plaintiff should not pursue employment where driving and
working alone are conditions of employment.
Michael Ferguson, plaintiff's primary care physician,
also treated plaintiff. Dr. Ferguson is not a neurologist and
he lacks any specialized training in neurology. Dr. Ferguson
opined that a neurologist should provide seizure precautions,
and specifically, those precautions should warn about driving
a motor vehicle. On one occasion, Dr. Ferguson told plaintiff
he should not drive until he was cleared to do so by a
experienced a seizure on January 14, 2014, meaning his
six-month seizure precautions last until July 14, 2014.
January 16, 2017, plaintiff disclosed Dr. Ferguson as a
non-retained expert in this case. See Doc. 66. On
April 3, 2017, both CMKA and AWG disclosed Dr. Kaplan and Dr.
Seeley as non-retained experts. See Docs. 97, 98
seeks to exclude certain testimony by Drs. Kaplan and Seeley.
Specifically, he seeks to exclude both neurologists from
the following topics:
1. “[T]he effect of Plaintiff's seizure disorder on
Plaintiff's qualification for employment with CMKA and
other employers, [and] his ability to perform job duties at
CMKA or other employers . . . .” Doc. 97 at 2 & 3.
2. “[T]he law in Kansas and Missouri on whether
individuals with seizure disorders may operate a motor
vehicle after experiencing a seizure . . . .” Doc.
178-2 at 1 & 2.
also seeks to exclude other opinions that the neurologists
expressed in their depositions. Namely, plaintiff seeks to
exclude the following opinions by Dr. Kaplan:
3. CMKA's Counsel: And if Mr. Crumpley was seeking
employment that required driving a vehicle or working-well,
let's take it one at a time. If he was seeking employment
within the six months after January 14, 2014, where that job
required him to operate a motor vehicle it would be your
expectation that he would disclose his seizure disorder to
his employer because of the driving requirement; correct?
Dr. Kaplan: Yes.
CMKA's Counsel: And same question with respect to working
alone, if he was seeking employment with an employer who was
offering him a job where he would be working alone you would
expect him to disclose his seizure condition to that employer
in those circumstances; true?
Dr. Kaplan: Yes.
Doc. 178-3 at 2 (Kaplan Dep. 56:10-57:1).
4. CMKA's Counsel: And if Mr. Crumpley was pursuing
employment where driving was a condition of the employment it
would be your opinion to him that he should not undertake
that employment if he was within six months of a seizure;
Dr. Kaplan: Yes.
CMKA's Counsel: And the same question I suppose as to a
job that may involve him working by himself without anyone
else around, if he were to seek that type of employment
within the six-month window after a seizure it would be your
opinion that he should not pursue that employment because of
the danger to him-himself in that case?
Dr. Kaplan: Yes.
Id. at 1-2 (Kaplan Dep. 52:17-53:5).
following specific testimony from Dr. Seeley:
5. AWG's Counsel: So assuming all of that to be true and
that one of his job duties involved driving a car, based on
what you knew of his epilepsy and the fact that he had
breakthrough seizures, I think reported in the medical
records every three to four months, is that a job that you
would have told him he was medically qualified to perform?
Dr. Seeley: If he was-I would not recommend operating a motor
vehicle if it was-if he was not six months seizure free.
Doc. 178-4 at 1 (Seeley Dep. 50:13-51:2).
6. AWG's Counsel: If Mr. Crumpley was offered a position
within two months of experiencing a seizure and he understood
that one of his job duties was to drive a car, would you
expect that he would volunteer that he had a seizure
Dr. Seeley: I have no idea what he would do.
AWG's Counsel: Let me ask you a different question. Would
you advise him that he should let his employer know that he
was not medically able to drive a car or shouldn't be
driving a car because he had had a seizure within the past
six year --six months?
Dr. Seeley: I would advise him that he should definitely let
his employer know if he-if he is going to operate a motor
vehicle, he should let his employer know that he has-has had
Id. at 1-2 (Seeley Dep. 52:6-53:1).
argues that the court should exclude Drs. Kaplan and
Seeley's testimony because it is inadmissible under
Fed.R.Evid. 702 and the rubric inspired by
Daubert. Federal Rule of Evidence 702 provides:
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Evid. 702. The Supreme Court has described the trial
judge's role under Rule 702 in this fashion:
Faced with a proffer of expert scientific testimony . . . the
trial judge must determine at the outset . . . whether the
expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or
determine a fact in issue. This entails a preliminary
assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts
Daubert, 509 U.S. at 592-93. In short, federal trial
judges must function as gatekeepers and ensure that
“‘an expert's testimony both rests on a
reliable foundation and is relevant to the task at
hand.'” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999) (quoting Daubert, 509 U.S. at
597). To determine expert testimony's reliability, the
trial court may use the Daubert factors. In summary
form, they ask the following questions:
(1) Has the theory or technique been tested (or can it be)?
(2) Has it been subjected to peer review and publication? (3)
Is there a known or potential high rate of error and are
there standards controlling the techniques of operation? (4)
Is the theory or technique generally accepted within the
Starling v. Union Pac. R.R. Co., 203 F.R.D. 468, 476
(D. Kan. 2001) (citing Kumho Tire Co., 526 U.S. at
149). “[T]hese factors are not exclusive [ones] and may
not apply in many cases.” Id. When the
challenged experts are treating physicians-as they are
here-“these factors are a bit unwieldy.”
argue that Drs. Kaplan and Seeley are exempt from the Rule
702 analysis because they treated plaintiff. Instead,
defendants argue, the challenged testimony is admissible as
lay opinions under Rule 701.
treating physician is not considered an expert witness if he
or she testifies about observations based on personal
knowledge, including the treatment of the party.”
Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999)
(citations omitted). “A treating physician's
testimony is based on the physician's personal knowledge
of the examination, diagnosis and treatment of a patient, and
not on information acquired from outside sources.”
Goeken v. Wal-Mart Stores, Inc., No. 99-4191-SAC,
2001 WL 1159751, at *2 (D. Kan. Aug. 16, 2001) (correction
and citation omitted). A treating physician's opinions
about “the cause of any medical condition presented in
a patient, the diagnosis, the prognosis and the extent of
disability, if any, caused by the condition or injury”
are “encompassed in the ordinary care of a patient and
do not subject the treating physician” to the
requirements of an expert. Id. Also, “[a]
treating physician, even when testifying as a lay witness,
may state ‘expert' facts to the jury in order to
explain his testimony.” Davoll, 194 F.3d at
1138 (citation omitted).
both Drs. Kaplan and Seeley treated plaintiff. So, they may
testify about things they observed during their treatment.
And their testimony may include opinions encompassed within
their “ordinary care” of plaintiff. See
Goeken, 2001 WL 1159751 at *2. But when the challenged
testimony goes beyond the scope of the physician's
personal knowledge based on his examinations during
treatment, the court must analyze it just as it would any
expert testimony. See Id. (explaining, when “a
treating physician is to testify on matters not based on his
or her observations made during the care and treatment of the
party, ” the physician must be treated as an expert).
plaintiff couches his arguments to exclude testimony by Drs.
Kaplan and Seeley as ones challenging three types of
opinions: (1) whether plaintiff was qualified to perform the
job; (2) the nature of driving laws; and (3) what plaintiff
is expected to disclose to an employer. The court adopts this
numbering convention, addressing plaintiff's challenge in
the following three subsections.
Whether Plaintiff was Qualified to Perform the Job
seeks to exclude testimony from Drs. Kaplan and Seeley that
opine whether plaintiff was qualified to perform his job with
CMKA. This request reaches the first opinion and Dr. Kaplan's
fourth opinion about what employment plaintiff should pursue.
Also, it reaches the opinion the fifth question seeks to
elicit from Dr. Seeley.First, the court provides a summary of its
rulings on these opinions:
May opine about plaintiff's ability to perform
May not opine about whether plaintiff is qualified to
perform the job
May not opine about what employment plaintiff should
May testify about recommendations made to plaintiff
argues, first, that the issue whether plaintiff was qualified
to perform the essential functions of his job is an ultimate
issue that the jury must decide. Then, he argues, the
questions posed to Dr. Seeley that led to the fifth opinion
would confuse a jury. Finally, plaintiff contends, Dr. Kaplan
and Dr. Seeley are not qualified to provide testimony whether
plaintiff was qualified to perform the essential functions of
his job because they have no specialized knowledge and do not
base their opinions on sufficient facts or data. And
importantly, plaintiff notes, the two neurologists did not
use the required two-step analysis to determine whether
plaintiff is qualified under the ADA.
their responses, defendants characterize plaintiff's
arguments differently. AWG argues that “Drs. Kaplan and
Seeley are not opining as to whether Plaintiff was qualified
to perform a certain job. Rather, the testimony is offered to
inform the jury what activities Plaintiff was told by his
neurologists would be safe for him to perform in light of his
medical condition . . . .” Doc. 186 at 10. This, AWG
contends, will “assist the jury in determining whether
Plaintiff could perform the Asset Protection Agent position
safely . . . .” Id. at 11. CMKA takes a
slightly different tack. It argues that Dr. Kaplan and Dr.
Seeley informed plaintiff of the driving restriction. So,
CMKA asserts, “if a position requires driving as part
of the qualifications of the job, and both doctors have
personal knowledge confirming that Plaintiff cannot drive,
then they are qualified to testify that Plaintiff cannot or
should not fill that particular job.” Doc. 187 at 10.
expert may offer an opinion even if it ‘embraces an
ultimate issue to be determined by the trier of
fact.'” Starling, 203 F.R.D. at 476.
“Nevertheless, an expert may not simply tell the jury
what result it should reach” by stating a “legal
conclusion.” Id. (citing United States v.
Simpson, 7 F.3d 186, 188 (10th Cir. 1993)). Here, the
challenged opinions come from treating physicians-not
experts. “A treating physician, even when testifying as
a lay witness, may state ‘expert' facts to the jury
in order to explain his testimony.” Davoll,
194 F.3d at 1138 (citation omitted). But the treating
physician still must base his opinion on plaintiff's
ordinary care. Goeken, 2001 WL 1159751 at *2.
court applied these restrictions to treating physicians in
Starling. There, the court allowed the treating
physicians to “explain how the symptoms of [Post
Traumatic Stress Disorder] impair[ed] a person's daily
activities.” 203 F.R.D. at 477. But when the proponent
of the testimony proffered that the treating physicians would
testify about the plaintiff's ability to perform the
duties of a specific job, the court required the proponent to
lay a foundation showing that the physicians knew the job
duties. Id. at 478. To reach this conclusion,
Starling examined the reasoning of Zarecki v.
Nat'l R.R. Passenger Corp., 914 F.Supp. 1566 (N.D.
Zarecki, the court treated a treating
physician's opinions as expert opinions because the
physician offered opinions about the cause of plaintiff's
injury and the injuries' foreseeability based on the work
conditions. 914 F.Supp. at 1573. The court ruled that the
physician's opinions were not based on personal
observations because there was nothing in the record
suggesting that the physician had visited the work site.
followed this reasoning, requiring a factual foundation
showing that the treating physicians knew what the job
entailed. 203 F.R.D. at 478. In closing, the court noted that
“an otherwise qualified social worker or physical
medicine specialist could opine about the ability of
[plaintiff] to perform specific acts or job tasks.”
as plaintiff contends, CMKA's argument goes too far for
two distinct reasons. CMKA's position assumes driving is
an essential function and states a legal conclusion- whether
plaintiff is qualified to perform a job. In contrast,
AWG's position is permissible.
begins by correctly asserting, “The testimony of Dr.
Kaplan and Dr. Seeley related to Plaintiff's
disability and how it affects his ability to perform
day-to-day activities is certainly under the purview of
topics upon which a plaintiff's treating physician is
entitled to opine pursuant to Fed.R.Evid. 701.” Doc.
187 at 9 (emphasis added). CMKA adds, “[i]f each
neurologist is qualified to make the determination that
Plaintiff has a seizure disorder, each is also qualified to
testify about life activities a person can and cannot
perform due to that seizure disorder.”
Id. (emphasis added). As AWG points out, “the
testimony is offered to inform the jury what activities
Plaintiff was told by his neurologists would be safe for him
to perform in light of his medical condition and assist the
jury in determining whether Plaintiff could perform the Asset
Protection Agent position safely . . . .” Doc. 186 at
10-11. This is permissible under Starling's
reasoning because the neurologists confine their opinions to
plaintiff's abilities to perform daily activities. Those
opinions, in turn, will assist the jury. See Fed. R.
Evid. 701 (“If a witness is not testifying as an
expert, testimony in the form of an opinion is limited to one
that is . . . helpful to clearly understanding the
witness's testimony or to determining a fact in issue . .
. .”). But CMKA exceeds Rule 701's scope when it
argues that these neurologists should be able to testify
whether plaintiff is qualified to fill a particular job-a
legal conclusion that tries to tell the jury how to decide
the testimony proffered in the first opinion is
impermissible. In Starling, the court required a
reasonable foundation showing that the treating physicians
knew plaintiff's job duties. 203 F.R.D. at 478. But here,
even a reasonable foundation will not make the first opinion
permissible because the opinion would render two legal
conclusions. The Starling court did not face that
issue because plaintiff sought relief for tort liability.
Id. at 470. So plaintiff's qualification to
perform a job was not an element of plaintiff's prima
facie case. Here, it is an element. See Adair v. City of
Muskogee, 823 F.3d 1297, 1304 (10th Cir. 2016) (holding,
to establish a prima facie case of discrimination, plaintiff
must show: “he is qualified, with or without reasonable
accommodation by the employer, to perform the essential
functions of the job.”). So, an opinion about whether
plaintiff is qualified is a legal conclusion. Also, by
opining whether plaintiff is qualified to perform the job,
the neurologists necessarily must recite the job's
essential functions-another legal conclusion and one that
neither expert has special training, skill, or experience to
provide. See Adair, 823 F.3d at 1307 (holding that
to determine whether plaintiff is a qualified individual, the
court, first, inquires “whether the plaintiff can
perform the essential functions of the job.”). So, to
opine whether plaintiff is qualified to perform the job, the
treating neurologists must state two legal conclusions.
Although a treating physician may state expert facts to
explain their opinions, see Davoll, 194 F.3d at
1138, he “may not simply tell the jury what result it
should reach.” Starling, 203 F.R.D. at 476.
these reasons, the court excludes testimony from Drs. Kaplan
and Seeley about plaintiff's qualification for
employment. But defendants properly may elicit testimony from
Drs. Kaplan and Seeley about “Plaintiff's
disability and how it affects his ability to perform
day-today activities”-such as driving or being alone.
See Id. at 477.
neurologists also may testify about any advice they gave
plaintiff about seizure precautions. This advice would be
based on “the physician's personal knowledge of the
examination [and] diagnosis and treatment of a
patient.” See Goeken, 2001 WL 1159751 at *2.
And so, treating physician testimony on such advice is
ruling also decides the dispute over the fifth opinion.
Although the question posed by AWG's counsel in that
opinion would be improper considering the court's ruling
here, Dr. Seeley's response is not. Dr. Seeley responded,
merely, “I would not recommend operating a motor
vehicle . . . if he was not six months seizure free.”
Doc. 178-4 at 1 (Seeley Dep. 50:25- 51:2). This is the type
of observation the court would expect a treating physician to
express because it consists of a recommendation based on the
physician's treatment of plaintiff. See Davoll,
194 F.3d at 1138. So Drs. Kaplan and Seeley properly may
testify about their recommendations to plaintiff based on his
extent that plaintiff's request includes the fourth
opinion, the court finds that testimony about whether
plaintiff should pursue employment is like asking whether he
is qualified to perform a job. It is too far removed from a
permissible recommendation based on plaintiff's treatment
and too close to stating an impermissible legal
conclusion-whether plaintiff was qualified to perform a job.
See Starling, 203 F.R.D. at 476. The court thus
excludes this type of opinion testimony.
these reasons, the court grants the portions of
plaintiff's motion seeking to exclude testimony about
plaintiff's qualification to perform certain jobs and
what employment he should have pursued.
The Nature of Driving Laws
plaintiff seeks to exclude testimony about the second
opinion-“the law in Kansas and Missouri on whether
individuals with seizure disorders may operate a motor
vehicle after experiencing a seizure . . . .” The court
summarizes its ruling in this fashion:
May testify about what they told plaintiff about the
May not testify about the actual content of the
contends that Drs. Kaplan and Seeley are not legal experts
and the driving restriction can be communicated to the jury
some other way. Thus, he contends, the court should prohibit
them from testifying that “the law is” this, or
defendants respond that these neurologists advise their
patients-plaintiff, specifically-about their understandings
of Kansas and Missouri driving laws as they apply to persons
with seizure disorder. AWG adds that this testimony would
help the trier of fact when determining whether plaintiff
could perform the essential functions of the position.
fact witness under Rule 701, “[a] treating
physician's testimony is based on the physician's
personal knowledge of the examination, diagnosis and
treatment of a patient, and not on information acquired from
outside sources.” Goeken, 2001 WL 1159751 at
*2. Drs. Kaplan and Seeley stay within those parameters when
they testify about the advice they gave plaintiff about the
driving laws because they gave this advice while treating
plaintiff. See Davoll, 194 F.3d at 1138. They exceed
those parameters, however, when they testify what the law is.
That status is information acquired from an outside source
and would require a legal expert's opinion. See
Goeken, 2001 WL 1159751 at *2 (“A treating
physician's testimony is . . . not [based] on
information acquired from outside sources.”
(emphasis added)). Defendants have not qualified either
neurologist as an expert in driving laws.
short, these neurologists may testify what they told
plaintiff about the laws as part of their treating
relationship with him. They may not testify that the law is
what they say it is. For these reasons, the portion of
plaintiff's motion seeking this exclusion is granted in
part and denied in part.
What Plaintiff is Expected to Disclose to an
plaintiff argues that the court should prohibit Drs. Kaplan
and Seeley from testifying about what plaintiff is expected
to disclose to an employer. This dispute encompasses the
third opinion and the first question posed in the sixth
are the court's rulings on these subjects:
May not testify about what plaintiff is expected to
disclose to an employer
May testify about recommendations made to plaintiff
May not testify about what plaintiff is expected to
volunteer to an employer
contends that neither doctor is qualified to testify in this
manner because there is no indication that they have any
training on ADA disclosures. In response, defendants argue
that these neurologists are not engaging in a legal analysis
of disclosure obligations; instead, defendants contend, their
expectations of what plaintiff should have disclosed is an
extension of their advice to him about seizure precautions.
argument does not convince the court. Advice to plaintiff is
something the court already has found involves treatment. But
there is no suggestion in the facts that the neurologists
conveyed the disputed expectations to plaintiff. So, the
court concludes that the neurologists' opinions about
what they expected plaintiff to disclose to a putative
employer is not based on their treatment of plaintiff.
See Davoll, 194 F.3d at 1138.
this conclusion does not resolve the dispute. In addition,
the court must analyze these opinions as it does any expert
testimony offered under Daubert and Rule 702.
See Goeken, 2001 WL 1159751 at *2. The court must
ensure that the proffered opinions rest both on “a
reliable foundation” and are “relevant to the
task at hand.'” Kumho Tire Co., 526 U.S.
at 141 (quoting Daubert, 509 U.S. at 597). The court
concludes that Dr. Kaplan and Dr. Seeley's expectations
of what plaintiff should disclose to an employer are not
relevant because their expectations will not assist the trier
of fact. See Daubert, 509 U.S. at 592-93 (“the
expert [must] testify to scientific knowledge that will
assist the trier of fact to understand or determine a fact in
issue”). With all respect for the physicians'
medical training and experience, their opinions on this
subject are no better informed than any other member of our
society. And permitting two credentialed witnesses to opine
about this question might mislead the jury to think that
their opinions matter because of their medical acumen.
Dr. Kaplan and Dr. Seeley's expectations somehow were
relevant, they do not rest on a reliable foundation. They do
no rest on special knowledge or training. For these reasons,
the court excludes testimony from these witnesses about what
plaintiff was expected to disclose to an employer, as
presented in the third opinion.
ruling also decides the question for the sixth opinion.
There, AWG's counsel first asked Dr. Seeley what he
expected plaintiff to volunteer to an employer about his
condition. The court discerns no real difference between
“disclose” and “volunteer” in this
context. So this question is improper in light of the
court's ruling. But, in contrast, the second question
AWG's counsel asked Dr. Seeley in the sixth opinion is
permissible. AWG's counsel asked, “Would you advise
[plaintiff] that he should let his employer know that he was
not medically able to drive a car or shouldn't be driving
a car because he had had a seizure within the past . . . six
months?” The court already has determined that these
neurologists may testify properly about advice they would
give plaintiff based on their treatment of him.
these reasons, the court grants plaintiff's Motion to
Exclude (Doc. 177) in part and denies it in part, as
described in detail in this Order.
Motions for Summary Judgment
the court turns to the motions for summary judgment. Each
party requests summary judgment. Plaintiff seeks partial
summary judgment on the issue whether his seizure disorder
qualifies as a disability under the ADA. Both defendants ask
for summary judgment against plaintiff's two claims. And
AWG also seeks summary judgment on the issue whether it was
reasons explained in the rest of this Order, the court grants
plaintiff partial summary judgment, grants AWG summary
judgment, and grants in part and denies in part CMKA's
Motion for Summary Judgment.
following facts are either stipulated facts taken from the
Pretrial Order (Doc. 173), uncontroverted or, where
controverted, stated in the light most favorable to the party
opposing that particular summary judgment motion. Scott
v. Harris, 550 U.S. 372, 378 (2007).
Plaintiff's Seizure Disorder and His Treatment
has a diagnosis of epilepsy because he had recurrent seizures
that were unprovoked. Epilepsy is characterized by individual
episodes which come in the form of seizures. Plaintiff has had a
seizure disorder for at least 11 years. When he turned 16
years old, plaintiff started seeing a physician regularly
about his seizure disorder. Two of plaintiff's treating
neurologists were Dr. Seeley and Dr. Kaplan.
considers his family medicine doctor, Dr. Ferguson, to be his
primary care physician. Dr. Ferguson is not a neurologist and
fewer than 5% of his patients have a seizure disorder. Dr.
Ferguson did not take over plaintiff's seizure care from
plaintiff's treating neurologists. But from approximately
October 2015 to April 2017, Dr. Ferguson was the only doctor
managing plaintiff's seizure disorder. Throughout his
treatment of plaintiff-including the period at issue here,
2014-Dr. Ferguson always told plaintiff that he needed to
seek treatment from a neurologist. Dr. Ferguson doesn't
think plaintiff sought or received consistent treatment by a
neurologist during 2014. But Dr. Ferguson believed plaintiff
was receiving some seizure care from Dr. Kaplan during that
seizure disorder causes him to experience both grand mal (or
tonic-clonic) seizures and complex partial seizures. Grand
mal seizures cause plaintiff to lose consciousness. During a
complex partial seizure, plaintiff has “difficulty
doing anything purposefully.” Doc. 176-1 at 10 (Seeley
seizures-affects activities of daily living. Dr. Seeley and
Dr. Kaplan opine that when plaintiff is having a seizure, he
is unable to perform manual tasks, his ability to concentrate
is limited, and he is substantially limited in his ability to
plaintiff's seizures are between three and six months
apart. Since 2008, plaintiff has never gone more than six
months between seizures. But he never has had seizures on
back-to-back days. As he explained to his doctors, plaintiff
sometimes experiences an aura- a warning that a seizure is
coming on; but sometimes he does not.
past seizures, plaintiff has been unconscious for as long as
45 seconds. He characterizes the period after unconsciousness
as “coming to, ” and he explained that it can
take up to five minutes for him to “come around.”
Doc. 183-2 at 4 (Crumpley Dep. 10:1-6). In 2013 and 2014,
plaintiff's seizures lasted between 60 and 90 seconds.
normal seizure, plaintiff is in a postictal state for as long
as an hour and he also has a headache. Dr. Ferguson witnessed
one of plaintiff's seizures and noted that plaintiff had
very “little postictal, ” meaning “within a
very, very short period of time he was back to exactly where
he was before he came in.” Doc. 200-7 at 3 (Ferguson
has a history of breakthrough seizures. This means that
plaintiff continued to have seizures even though he was on
medication. For patients who have generalized tonic-clonic
seizures, like plaintiff, taking medication consistently and
in the right amount is crucial for controlling a seizure
disorder. In plaintiff's case, his medications did not
always control his seizures.
there is no cure for seizure disorder, seizure surgery
eliminates a patient's seizures 20 to 25 percent of the
time. A Vagal Nerve Stimulator is another medical option for
patients with seizure disorder. In Dr. Kaplan's
experience, this treatment can result in significantly
improved seizure control in about 75 percent of patients. Dr.
Seeley repeatedly recommended a Vagal Nerve Stimulator to
plaintiff to help him control the number of seizures he
experiences. Dr. Kaplan also believes plaintiff was a good
candidate for this procedure. But plaintiff did not undergo
the procedure because, based on his own personal experience,
he did not feel he needed it. Plaintiff believes that he
didn't need the procedure because his seizures occurred
so far apart and milder than seizures he has witnessed others
failed to follow the directives from Dr. Seeley, his treating
neurologist, to seek regular follow up care. Between January
2010 and February 2013, plaintiff followed up with Dr. Seeley
two times. Plaintiff went 11 months from January to December
2010 without following up with Dr. Seeley. He then went
another eight months-until August 2011-without follow up
care. Finally, he went until February 2013-18 months-without
following up with Dr. Seeley.
treating neurologists warned plaintiff about standard seizure
precautions during his treatment for his seizure condition.
These precautions included refraining from: driving a
vehicle; working at certain heights; and working alone or
being alone for extended periods of time for six months after
a seizure. The neurologists recommended these precautions to
decrease plaintiff's risk of serious, adverse events
while experiencing a seizure, which are more common within
the six months after a seizure. Because of the seriousness of
the risk, driving within six months after a seizure is one of
the most important precautions. The seizure precaution
against working alone or being alone for extended periods of
time is also important because an individual with a seizure
disorder risks complications such as choking, aspiration
pneumonia, or Sudden Death of Epilepsy (“SUDEP”).
doctors informed him that it is illegal for him to drive in
Kansas and Missouriwithin six months after he experiences a
seizure. But plaintiff cannot recall definitively whether he
investigated the legality of driving in those circumstances.
His understanding was that, as a Missouri resident, he could
not drive for three months after a seizure.
Seeley told plaintiff about the seizure precautions,
including the one against driving within six months after a
seizure. Dr. Seeley also displays posters in his office that
advise it is illegal in both Kansas and Missouri to drive
within six months of a seizure. And Dr. Kaplan strictly
cautioned plaintiff that it was illegal to drive in the six
months after a seizure, and that he could “seriously
hurt or even kill someone if he were to have an episode or
seizure while driving.” Doc. 180-3 at 9 (Kaplan Dep.
51:23-52:5). Despite the standard six-month seizure
precaution, Dr. Kaplan opined that plaintiff should not drive
at all unless he has seizure surgery and is seizure free for
two years. Even small seizures can pose a danger to someone
who is driving a motor vehicle.
never disclosed his seizure disorder to either the State of
Kansas or the State of Missouri. Specifically, when acquiring
or renewing his driver's license, plaintiff never has
disclosed that he has a seizure disorder. Plaintiff did not
recall whether the Missouri driver's licensing agency
asked him about a seizure disorder when he submitted his
driver's license application.
agrees that the reason for seizure precautions-including the
ones against driving, working at certain heights, and working
alone or being alone for extended periods of time-is for the
safety of himself and others. Specifically, plaintiff knows
and agrees that it is dangerous for him (and others) to drive
a car during the six months after he has experienced a
seizure because of the potential for another seizure, and
possibly causing him to crash and hurt himself or others.
But, plaintiff did not comply with the directives from his
physicians against driving a vehicle for six months after
experiencing a seizure because he needed to work and had
needed a way to get to work. Plaintiff has driven and
continues to drive within six months after
has had two motor vehicle accidents that occurred because he
had a seizure while he was driving-one on March 16, 2008, and
another on May 4, 2015. Both accidents injured plaintiff.
During the 2008 accident, plaintiff's younger brother was
in the car with him. Plaintiff remembers waking up in the
back of an ambulance after the 2015 accident. After the 2008
motor vehicle accident, plaintiff only took a week off from
driving. And after the 2015 motor vehicle accident, he took
three to four days off before driving again.
of any safety concerns, plaintiff has chosen not to abide by
driving laws and his doctors' seizure precautions when he
does not agree with them. He does not believe he should be
treated differently than a diabetic whose blood sugar may
plummet and cause him to pass out while driving.
seizure precautions, notwithstanding, plaintiff contends his
doctors never have restricted him from performing any
Agreement between AWG and CMKA
provides security and investigative services to its clients.
Those services include armed and unarmed security guarding,
armed executive protection, security consulting, and
investigative services. In August 2013, AWG and CMKA entered
into an Unarmed Premium Asset Protection Service Agreement
(“Agreement”). This agreement provided that CMKA
would supply Asset Protection Agents (i.e., security
guards) to provide security and related services for
AWG's location in Kansas City, Kansas. The Agreement
provided, in relevant part:
a. All Asset Protection Agents furnished by CMKA shall be
employees, agents or subcontractors of CMKA, which is acting
as an independent contractor for [AWG]. CMKA will pay all
wages and appropriate expenses, and, for its employees, all
Employers' Federal, State, and Social Security taxes,
Federal and State Employment taxes, and any other required
personnel taxes. [AWG] shall not direct or supervise any of
CMKA's Asset Protection Agents.
b. CMKA will provide its Asset Protection Agents with
uniforms, and all necessary equipment, as mutually agreed
upon between [AWG] and CMKA. [AWG] shall have the right to
reject for any reason any Asset Protection Agent assigned by
CMKA to [AWG] facility, and CMKA shall provide a satisfactory
replacement as soon thereafter as possible.
c. [AWG] agrees that it will not employ, as an Asset
Protection Agent or in any related capacity, directly or
indirectly, any person who has been employed by CMKA and
assigned to the [AWG] facility, for a period of one hundred
eighty (180) days following the last date on which CMKA
employed that person.
. . .
III. SCOPE OF WORK
. . .
b. The conduct and scope of responsibility of all Asset
Protection Agents assigned to [AWG]'s facility shall be
governed by policy, rules and Post Orders mutually agreed to
by both parties and made a part of this Agreement. This data
may be revised and supplemented at any time in writing upon
mutual agreement of both parties. No. alteration of Post
Orders can be given by [AWG] unless in writing and signed by
c. It is understood that CMKA will be responsible for the
hiring, uniforming, training, and supervision of all Asset
Protection Agents provided for [AWG] unless otherwise agreed
to by [AWG] . . . .
IV. BILLING, TERMS AND RATE GUARANTEES
a. CMKA will deliver weekly invoices containing a complete
detail of the hours worked by CMKA's employees on-site as
Asset Protection Agents to [AWG] at the address specified. A
detailed statement of the number of hours worked by each
Asset Protection Agent will also be supplied or made
available at [AWG]'s request. Invoices shall be due and
payable upon receipt without offset of any kind or nature
whatsoever . . . .
Doc. 180-10 at 1-2. Also the Agreement required CMKA to
maintain “statutory worker's compensation insurance
. . . [and] employer's liability insurance.” Doc.
180-10 at 4. The Agreement required AWG to pay CMKA $16.00
for each service hour worked by CMKA employees at AWG's
facility. CMKA managed overtime, and AWG only paid CMKA the
overtime rate-time and a half-when AWG requested a specific
agent to work beyond the schedule or when the agent worked on
a nationally-recognized holiday.
originally entered the Agreement with CMKA so that CMKA could
provide security officers to staff the AWG Guard Shack. Five
months later, AWG decided to outsource this position. In
March 2014, CMKA began providing personnel to cover some of
the desk security officer (“Desk Officer”) shifts
and limited patrol/EMT (“EMT/Patrol Officer”)
shifts at AWG's location in Kansas City, Kansas.
Initially, CMKA provided Asset Protection Agents to cover the
Desk Officer position for 88 hours per week and the
EMT/Patrol Officer for 56 hours per week. Beginning about
June 2014, AWG reduced the number of hours it needed from the
CMKA Asset Protection Agents for the EMT/Patrol Officer
position from 56 hours per week to 16 hours per week.
Plaintiff's Application to CMKA
responded to a CMKA posting on Craigslist seeking
“EMT/Security Guards (unarmed) to work at a Kansas
City, KS business.” See Doc. 183-4 at 1. He
submitted a cover letter and his résumé to
CMKA. The Craigslist job posting was the only job description
plaintiff saw for this position. It listed the experience and
the skills required. The advertised position required a
certified and licensed EMT who was reliable, punctual,
trustworthy, and customer-service oriented. Also, the
position required good oral and written communication skills,
basic computer operation skills, professional representation
of the company, good physical condition, and a neat and clean
early March 2014, plaintiff interviewed for the job. Two CMKA
supervisory employees-Terry Threadgill and Jeff
Harper-interviewed plaintiff. During the interview, they did
not ask plaintiff whether he suffered from any medical
conditions. They also did not ask this question after he was
hired. And although plaintiff knew during the application and
interview process that the position might include driving and
working alone, he did not inform anyone at CMKA about his
seizure disorder or the seizure precaution directives
(i.e., no driving or working alone). Because he had
suffered a seizure in January 2014, the seizure precautions
warned plaintiff against driving or working alone until July
2014. But plaintiff told Mr. Harper during the CMKA interview
in March 2014 that he was physically able to perform the job
duties, including driving and working alone, even though that
contradicted the directives he had received from his doctors.
Plaintiff agrees he hid his seizure disorder and related
restrictions from CMKA so he could get the job there.
long after the interview, CMKA hired plaintiff as an Asset
Protection Agent and he held that position throughout the
time he worked for CMKA. He was an on-call employee, which
meant that CMKA called him to work when hours were available.
The job duties of an Asset Protection Agent differed
depending on the needs of the customer and the job site. An
Asset Protection Agent assigned to AWG worked in the guard
shack, worked at the front desk, performed EMT duties, and
performed patrol duties. Scheduling for the Asset Protection
Agents varied based on the clients' needs. But from March
through May 2014, AWG only needed Desk Officers-not
not involved in plaintiff's application or interview
process. Nor was AWG involved in the decision to hire
plaintiff. Generally, AWG was not involved in CMKA's
Asset Protection Agent hiring process. But on May 23, 2014,
Rod Smith, CMKA's Chief Operations Officer, sent Jerry
Burke, AWG's Senior Manager for Corporate Security, an
email with candidates' resumes attached. Mr. Smith told
Mr. Burke that he was attending the interviews “to get
a better sense of who to select . . . or at least [who] to
offer to you as a candidate.” Doc. 180-27 at 2. After
one of the candidates completed his background check and
initial drug screening, Mr. Smith planned to send the
candidate over “for a look by” Mr. Burke and
AWG's Security Supervisor in Kansas City, Kansas.
Plaintiff's Employment Paperwork, Pay, and
conducts a new hire orientation program. It includes
reviewing the CMKA Employee Handbook and completing necessary
paperwork. Plaintiff has no independent recollection of this
orientation. But he did receive the CMKA Employee Handbook,
the Asset Protection Agent Employee Handbook Supplement, and
Safety Program Handbook. Plaintiff reviewed the CMKA Handbook
and signed an acknowledgement form confirming that he had
received, read, and understood the policies included in
CMKA's Employee Handbook.
CMKA Employee Handbook contains a Progressive Discipline
Policy with six levels of discipline, culminating with
dismissal. The dismissal subsection included the following
provisions: “Actions taken may deviate from
recommendations listed due to extenuating circumstances,
” and “Project Managers have the authority to
execute immediate suspensions from the site based on their
judgment.” Doc. 209-15 at 49-50.
Handbook also listed ten offenses that could result in
1. Possession of unauthorized weapons at work.
2. Abandoning post without proper relief.
3. Using or being under the influence of alcohol,
intoxicants, illegal drugs, controlled substances (to include
certain prescription drugs) while on the job.
4. Falsifying any CMKE or client record, including
application, timesheets, logs, tour reports, and requests for
5. Theft of or deliberate damage to CMKE or client property.
6. Violation of CMKE's use of force/escalation of force