FILED

United States Court of Appeals

Tenth Circuit

December 22, 2014

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALPHONSO MYERS,

Plaintiff ! Appellant,

v.

KNIGHT PROTECTIVE SERVICE,

INC.; WILLIAM THOMPSON, an

individual,

Defendants ! Appellees.

No. 12-6056

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.

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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

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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

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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.

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