United States District Court, D. Colorado
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Brooke Jackson, United States District Judge
matter is before the Court on defendant Makhaira Group Range
Operations, LLC's (“Makhaira”) and defendant
Liberty Firearms Institute, LLC's (“Liberty”)
motions for summary judgment. ECF Nos. 40, 41. For the
reasons stated herein, both motions are GRANTED.
a case about alleged employment discrimination. Defendant
Liberty owns a gun store and range in Johnstown, Colorado.
ECF No. 41 at 1. Liberty contracts with defendant Makhaira to
run its shooting ranges. Id. Plaintiff Dustin
Khaffaji is a Marine Veteran and a medically retired Federal
Law Enforcement Officer who applied for a job with Makhaira.
ECF No. 1 at 3. He interviewed for the role of Range Safety
Officer on April 12, 2016 with the President of Makhaira,
Mark Hotaling. Id. During the interview, Mr.
Khaffaji discussed the fact that he had a disability,
although Mr. Hotaling did not ask what his disability
ECF No. 40-6 at 3. Mr. Khaffaji also revealed that he had
been arrested for driving under the influence (DUI) in the
past but the charges had been dropped. ECF No. 40-7 at 3. Mr.
Khaffaji did not recall whether he also revealed that he had
a reckless driving charge on his record. Id. at 5.
Mr. Khaffaji was hired by Makhaira on April 16, 2016 to work
as a Range Safety Officer at the Liberty shooting range.
Khaffaji attended a classroom training for his new job on
April 19, 2016. Id. At that training he again told
Mr. Hotaling about the dismissed charges on his record
because they were affecting his ability to obtain a concealed
gun permit. ECF No. 40-7 at 9. He explained that he had a DUI
incident on his record that they had previously discussed
which had been dismissed, and that he was charged in 2009
with possession of a handgun while under the influence which
had been pled down to a noise disturbance. ECF No. 40-7 at
11. Mr. Hotaling stated that he understood Mr. Khaffaji to be
discussing only a single incident in 2009, and Mr. Hotaling
told Mr. Khaffaji that he was not automatically disqualified
but that Makhaira would need to see what the background check
showed. ECF No. 40-4 at 2; ECF No. 40-6 at 5.
April 19 meeting Mr. Khaffaji also disclosed that his
disability was PTSD. ECF No. 42-1 at 10; ECF No. 40-6 at 10.
Mr. Hotaling, who is a retired Navy SEAL and counsels
individuals with PTSD, offered to be available to talk to Mr.
Khaffaji about his PTSD. ECF No. 42-1 at 10.
April 25, 2016 Mr. Khaffaji attended another training for his
new job. At that training, two of Liberty's employees,
Frank Schmeeckle and Heather Rubel, were introduced to the
new hires. ECF No. 41-6 at 1. Also at that training, Mr.
Khaffaji and the other new hires filled out a background
check. Id. The background checks were run by a
Liberty employee, Cami Walker (nee Robertson). ECF Nos. 41-4,
41-5. After the results came back at the end of the night,
Ms. Walker handed Mr. Hotaling the results of the background
checks. ECF No. 41-1 at 6.
Khaffaji's background check revealed that he had two
alcohol-related incidents on his record. ECF No. 40-3. In
2014 he was charged with reckless driving and driving under
the influence. Id. at 2-3. He pled guilty to
reckless driving but the charge of driving under the
influence was dismissed. Id. In 2009 he was charged
with disorderly conduct, to which he pled guilty, and the
prohibited use of a weapon when drunk. Id. at 2-4.
Although Mr. Khaffaji claims that he had previously disclosed
both the 2009 and 2014 incidents to Mr. Hotaling, Mr.
Hotaling avers that he had misunderstood and had believed
that Mr. Khaffaji only had a 2009 incident on his record
until he saw the results of the background check. ECF No. 40
at 4-5; ECF No. 40-4 at 2.
next day, April 26, 2016, Mr. Hotaling met briefly with
Heather Rubel and Grant Schmeeckle of Liberty. ECF No. 41-3
at 6-7. He indicated that a few of his new hires'
background checks had been marked “review, ” but
he did not disclose which individuals' checks were at
issue or what the charges were. Id. at 8. Instead he
asked what Liberty's criteria were for disqualifying
individuals from shooting at the range. Id. at 6-7.
Ms. Rubel and Mr. Schmeeckle indicated that if an individual
had been prohibited from possessing or purchasing a weapon he
or she would not be allowed to shoot at the range.
Id. Mr. Hotaling also asked how the range would
treat alcohol incidents, and Ms. Rubel and Mr. Schmeeckle
indicated that the decision was within Makhaira's
discretion. ECF No. 41-6 at 2.
April 26, Mr. Hotaling called his co-owners of Makhaira to
discuss Mr. Khaffaji's employment. ECF No. 40-4 at 2; ECF
No. 40-6 at 14-16. In that conversation the owners of
Makhaira decided to terminate Mr. Khaffaji. ECF No. 40-6 at
16. Later that same day, Mr. Hotaling called Mr. Khaffaji and
informed him that he was being terminated. ECF No. 40-6 at
17. Although Mr. Hotaling alleges that he had planned to
offer Mr. Khaffaji an alternative position where he would not
be carrying a gun, Mr. Khaffaji allegedly became very angry
over the phone, and Mr. Hotaling did not make the
offer. Id. at 18. The next morning,
April 27 2016, Mr. Hotaling called Ms. Rubel and Mr.
Schmeeckle at Liberty to inform them that he had fired Mr.
Khaffaji, which was the first time either Ms. Rubel or Mr.
Schmeeckle learned that he had been employed by Makhaira.
Id. at 13; ECF No. 41-6 at 2. .
point, the plot thickens. As it turns out, Ms. Rubel had a
long and rocky past with Mr. Khaffaji's wife stemming
from a fourth grade falling out. ECF No. 41-6 at 3. Afraid
that Mrs. Khaffaji would think that Ms. Rubel was to blame
for her husband's losing his job, Ms. Rubel reached out
to a mutual friend, Jessica Gordon, hoping that she would act
as the go-between to exonerate Ms. Rubel in Mrs.
Khaffaji's eyes. Id. After meeting with Ms.
Rubel, Ms. Gordon conveyed via text to Mrs. Khaffaji that
“[t]he fact that he has 2 DUIs is a liability for their
insurance I guess.” ECF No. 42-8 at 4. Ms. Gordon
assured Mrs. Khaffaji that she did not tell Ms. Rubel about
Mr. Khaffaji's PTSD, but that “[t]he mark guy told
her about it.” Id. at 3. Ms. Gordon also
stated that “[t]he ptsd and the dui is just not a good
combo for the job.” Id. When Mrs. Khaffaji
asked whether those were Ms. Rubel's words, Ms. Gordon
responded that “[s]he said that they said that about
it, ” and that “[s]he said that the dui is a
liability issue for the insurance.” Id. at 5.
1, 2016 Ms. Gordon signed a “sworn statement”
drafted by Mrs. Khaffaji that summarized Ms. Gordon's
meeting with Ms. Rubel, stating in part that Ms. Rubel
“said that she and a co-worker named Mark had discussed
Dustin's background and PTSD.” ECF No. 42-7 at 2.
According to this statement, “She said Mark offered
PTSD counseling to Dustin and that when it came down to it,
‘PTSD and DUI is a liability issue with
insurance.'” Id. Ms. Gordon avers that she
was drunk when she signed this statement, and that she had
only signed it to protect Ms. Rubel from a lawsuit. ECF No.
41-7 at 11, 13. Moreover, she claims that she tried to
“reject” and retract the statement. ECF No. 42-12
at 4. Nonetheless, she maintains that the statement is
“not false.” Id. In her deposition, Ms.
Gordon averred three times that Ms. Rubel “did not say
PTSD, ” ECF No. 41-7 at 4, 18, 19 (“she never
said that statement”) but in the same deposition she
also testified that Ms. Rubel said that PTSD and DUI were a
liability issue. Id. at 20.
Rubel states that she never mentioned PTSD as a liability or
as a reason for Mr. Khaffaji's termination. ECF No. 41-6
at 3; ECF No. 42-10 at 2. She also states that she was aware
of Mr. Khaffaji's PTSD before April 2016 because Ms.
Gordon had hold her about it, and that she had never
discussed his PTSD with Mr. Hotaling. ECF No. 41-6 at 3.
Khaffaji filed his complaint before this Court asserting two
claims against both Makhaira and Liberty: (1) Disability
Discrimination under the Americans with Disabilities Act
(ADA) and the ADA Amendments Act (ADAAA), (2) Disability
Discrimination under section 12112 of the ADA. ECF No. 1 at
5-7. Mr. Khaffaji brought a third claim of interference with
contractual relations against Liberty only. Id. at
7-8. In my order on Liberty's motion to dismiss the
complaint, I dismissed the first two claims with respect to
Liberty. ECF No. 23. As a result, the first two claims apply
only to Makhaira at this point.
filed its motion for summary judgment with respect to Mr.
Khaffaji's two claims against it, and Liberty filed a
motion for summary judgment with respect to Mr.
Khaffaji's third claim. ECF ...