Khaffaji v. Makhaira Group Range Operations, LLC

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          R. Brooke Jackson, United States District Judge

         This 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.

         I. BACKGROUND

         A. Factual Background.

         This is 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 was.^[1] 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. Id.

         Mr. 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.

         At the 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.

         On 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.

         Mr. 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.

         The 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.

         Also on 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.^[2] 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. .

         At this 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.

         On May 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.

         Ms. 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.

         B. Procedural Background.

         Mr. 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.

         Makhaira 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 ...