Opinion
No. 2008-CA-000754-MR.
Rendered: March 13, 2009.
Appeal From Jefferson Circuit Court, Honorable Geoffrey P. Morris, Judge, Action No. 05-CI-003421.
Alan W. Roles, Elizabeth A. Coleman, Louisville, Kentucky, Briefs For Appellant.
Stephen P. Durham, Louisville, Kentucky, Brief For Appellee.
Before: COMBS, CHIEF JUDGE; CAPERTON AND CLAYTON, JUDGES.
OPINION
Appellant Charles Adams, (Adams), appeals the March 18, 2008, opinion and order of the Jefferson Circuit Court granting summary judgment in favor of Appellee, Louisville-Jefferson County Metro Government. Adams initiated this wrongful termination action for purposes of asserting that his employer, Louisville Metro Health Department (LMHD), violated Kentucky Revised Statutes (KRS) Chapter 207, Kentucky's Equal Opportunities Statute, and KRS 344, Kentucky's Civil Rights Statute. Specifically, Adams asserts that the trial court invaded the province of the jury in determining that the employer did not regard the employee as having a disability at the time of termination and by determining that the employee's alleged disability did not substantially limit a major life activity. After a thorough review of the record and arguments of the parties, we affirm.
Adams was hired by the Louisville-Jefferson County Metro Government on December 22, 2003, as an administrative assistant to Reed Harris, (Harris), the Community Health Services Director at LMHD. Adams' primary duties and responsibilities included answering phones, filing and organizing documents, scheduling meetings, maintaining Harris' calendar and assisting with the typing and proofreading of written correspondence. The first six months of Adams' employment was considered a probationary period.
Adams asserts that during the hiring process, he provided documentation to LMHD concerning the fact that he was disabled. Specifically, in 1998, Adams was placed on a light duty standing restriction of 20 to 30 minutes by Dr. Rolando Puno. These restrictions apparently stemmed from injuries initially received during service to the United States Marine Corps, and subsequently, from lifting associated with employment with the United States Postal Service (USPS). Adams apparently developed a spinal condition which required spinal surgeries.
Of note, on February 9, 2000, Dr. Puno reviewed a functional capacity evaluation report and released Adams to return to work at the job which he held at USPS with certain limitations and restrictions. Adams's request to return to USPS at light duty was denied. This led to litigation with USPS, in which Adams asserted similar claims to those he now asserts against LMHD, namely, wrongful termination because of discrimination based on disability. A summary judgment was also entered against him in that case. Thereafter, Adams failed to prevail on appeal to the Sixth Circuit Court of Appeals.
As noted, following his employment at USPS, Adams eventually accepted employment with LMHD. After approximately one month on the job, Adams met with Harris for a one-on-one performance evaluation. Adams received a favorable written evaluation including instructions on how to improve his performance. LMHD asserts that after issuing the written evaluation, Harris continued to meet with Adams to counsel him on his interaction with his coworkers as well as to reinforce his job duties and the expectations of LMHD.
Adams states that following the evaluation, he experienced pain in his back. Adams further states that he discussed his spinal condition with Harris and that he requested a more comfortable chair with back support due to his condition. Harris approved this request and suggested that Adams see a doctor concerning his complaints. Adams was examined by Dr. Ronald Koff on January 22, 2004. He was treated for a muscle injury or strain of the back at that time.
Adams nevertheless asserts that as of mid-February 2004, he began experiencing right-sided radiculopathy of the lower extremity, which substantially limited his ability to stand and walk, and thus, his participation in major life activities. Adams therefore requested and was granted sick leave by LMHD to see his physician. Dr. Koff confirmed Adams' complaints of radiculopathy and made a corresponding diagnosis. Dr. Koff prescribed a narcotic analgesic used for severe pain and a steroid package to relieve swelling around the nerve root. Dr. Koff also referred Adams to Dr. Puno for a surgical evaluation. That appointment was scheduled for March 17, 2004.
Adams returned to work on February 18, 2004, at which time he presented the medical excuse to Harris and advised him of his medical visit and accompanying prescriptions. Adams asserts that within approximately one hour from the time he notified Harris of the results of his doctor's visit, he was terminated. Adams received a letter, reading in part:
After careful consideration of your performance during your probationary period, I regret to inform you that your performance has fallen short of the needs and expectations of the health department. Accordingly, your employment within the department is terminated.
LMHD asserts that Adams did not perform his job duties as expected, and therefore, approximately one month after receiving the favorable written evaluation, Adams was fired because his "performance had fallen short of the needs and expectations of the Health Department."
See deposition of Reed Harris, Exhibit Two: Termination Memo.
In response, Adams asserts that he received no prior warning that his job performance had fallen short of any needs or expectations of LMHD nor was he counseled with regard to any issues concerning his employment. Harris claims that Adams was counseled but that the counseling was never documented. After the commencement of the instant litigation, LMHD produced statements and affidavits containing allegations from Adams' coworkers concerning purported misconduct on the part of Adams.
Adams asserts that his termination was in contradiction of all written policies in effect at the time. Adams also draws this Court's attention to the fact that his predecessor, Harris' former administrative assistant, had missed significant periods of work due to her own health issues and due to caring for family members with health issues, which apparently caused extra work for others in the section.
As noted, Adams ultimately filed the instant suit for wrongful termination, asserting violations of his right to equal opportunity and his civil rights under Kentucky law pursuant to KRS 207.170 and KRS 344.040, respectively. After an initial period of discovery, LMHD filed a motion for summary judgment, which was initially denied by the trial court. LMHD then moved for reconsideration. The trial court subsequently entered an opinion and order granting the motion to reconsider, which set aside its prior ruling and granted summary judgment to LMHD. In that opinion, the trial court addressed other issues of law but did not address the findings set forth in its first opinion denying summary judgment.
KRS 344.040(1) establishes that:
It is an unlawful practice for an employer:
(1) To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, national origin, sex, age forty (40) and over, because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking [.]
Adams appeals the court's subsequent granting of summary judgment, asserting that a genuine issue of fact exists as to whether his employer regarded him disabled at the time of termination and as to whether his condition substantially limited a major life activity.
At the outset, we note that in reviewing a grant of summary judgment, the standard of review on appeal is "whether the trial court correctly found that there were no genuine issues as to any material fact. . . ." Lewis v. B R Corporation, 56 S.W.3d 432, 436 (Ky.App. 2001), quoting Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); Kentucky Rules of Civil Procedure (CR) 56.03. Further, evidence must be viewed in a light most favorable to the party in opposition and the moving party must be entitled to judgment as a matter of law. Lewis, supra, citing Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480-82 (Ky. 1991). In order to successfully oppose the motion, the nonmoving party must come forward with some affirmative evidence that a genuine issue of material fact exists. Lewis, supra. As only legal questions are involved, we review a grant of summary judgment de novo. See Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 (Ky.App. 2004).
Further, we note that in light of the similar language and the stated purpose of KRS Chapter 344 to embody the federal civil rights statutes, including the Americans with Disabilities Act (ADA), this court may look to federal caselaw in interpreting the Kentucky Civil Rights Act with respect to Adams' claim of disability discrimination under KRS 344.040. See Hallahan, supra, at 706, citing, e.g., Howard Baer, Inc. v. Schave, 127 S.W.3d 589 (Ky. 2003) (citing Bank One, Kentucky, N.A. v. Murphy, 52 S.W.3d 540, 544 (Ky. 2001)); Noel v. Elk Brand Mfg. Co., 53 S.W.3d 95 (Ky.App. 2000); Brohm v. JH Properties, Inc., 149 F.3d 517, 520 (6th Cir. 1998); Summers v. Middleton Reutlinger, P.S.C., 214 F.Supp.2d 751, 755 (W.D. Ky. 2002).
Having set forth our standard of review, we now turn to the state of the law in this Commonwealth as it pertains to disability discrimination claims. The law in this Commonwealth is clear, insofar as it is the plaintiff's obligation, when alleging termination on the basis of disability discrimination, to bear the initial burden of establishing a prima facie case against the defendant. See Hallahan v. The Courier-Journal, 138 S.W.3d 699, 706 (Ky.App. 2004), and Hedrick v. Western Reserve Care System, 355 F.3d 444 (6th Cir. 2004).
In order to do so, the plaintiff must show: (1) that he had a disability as that term is used under the statute; (2) that he was "otherwise qualified" to perform the requirements of the job, with or without reasonable accommodation; and (3) that he suffered an adverse employment decision because of the disability. See Hallahan, supra, citing Henderson v. Ardco, Inc., 247 F.3d 645, 649 (6th Cir. 2001); Wright v. CompUSA, Inc., 352 F.3d 472, 475 (1st Cir. 2003); Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2nd Cir. 2003).
If and when an employee makes a prima facie case, the burden shifts to the employer to offer a legitimate explanation for its action. If that burden of production is satisfied, the burden again returns to the plaintiff to introduce evidence showing that the proffered explanation is pretextual. See Hedrick, supra at 452-53, and Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1178-79 (6th Cir. 1996), and Kentucky Department of Corrections v. McCullough, 123 S.W.3d 130 (Ky. 2003).
Pursuant to KRS 344.010(4):
(4) "Disability" means, with respect to an individual:
(a) A physical or mental impairment that substantially limits one (1) or more of the major life activities of the individual;
(b) A record of such an impairment; or
(c) Being regarded as having such an impairment. Persons with current or past controlled substances abuse or alcohol abuse problems and persons excluded from coverage by the Americans with Disabilities Act of 1990 (P.L. 101 — 336) shall be excluded from this section.
LMHD asserts that as Adams' alleged impairment does not rise to the level of disability as that term is defined by KRS 344 or relevant caselaw, his claim fails both the first and third prongs of the Hallahan test.
Adams himself isolates the "key issue" for our consideration as being whether LMHD regarded Adams as disabled. As noted, the trial court, in its opinion and order granting summary judgment, ultimately found that Adams had not shown he was substantially limited in the major life activities of standing or working, nor that LMHD regarded him as such. Adams now asserts that the court's ruling in this regard invaded the province of the jury as whether or not he was "substantially limited" was a fact question.
See Adams' Reply Brief, p. 1.
Having reviewed the decision previously rendered by this Court in Hallahan, we find it to be on point in the matter sub judice. Adams attempts to distinguish Hallahan by noting that the trial court addressed the issues of whether he was substantially limited in the activities of both standing and working and states that this was irrelevant to the jury question of whether LMHD perceived that Adams was substantially impaired at the time of its termination of him. While a review of the record indicates that it is true that Adams never maintained an issue with regard to the major life activity of working, we do not believe that the court's decision to address that issue makes Hallahan inapplicable to the facts of this case.
As the primary issue in this matter is whether or not LMHD regarded Adams as disabled, we believe Hallahan to be applicable and are guided by that precedent. Adams argues on appeal to this Court that whether or not he was regarded as being substantially limited as a result of his impairment was a question for the jury. As we noted in Hallahan, it is true that the only legal questions that the court must answer are whether the plaintiff had an impairment and whether the conduct affected by the impairment was a major life activity. See Hallahan, supra, at 707.
Certainly, whether an impairment substantially limits a major life activity is normally a fact question for the jury. While this is true, in certain situations, the issue of whether the impairment substantially limits a major life activity can be resolved by summary judgment. See Bristol v. Board of County Commissioners of the County of Clear Creek, 281 F.3d 1148, 1161 (fn5) (10th Cir. 2002).
Holding that although the question of whether an impairment substantially limits the major life activities of an employee is reserved for the jury in an ADA trial, a court may decide it in the appropriate circumstance, such as upon a motion for summary judgment or a motion for judgment as a matter of law.
In filing this claim, the burden was on Adams to provide some evidence that he was disabled or regarded as disabled, or that he suffered some adverse employment action because of his alleged disability. As noted, to do so, Adams bore the burden of establishing either that he was disabled, and such disability was on record, or that he was regarded as so by his employer. As our Kentucky Supreme Court stated in Howard Baer Inc., supra at 504, quoting Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir. 2001), "[t]o succeed upon a regarded as disabled claim, plaintiff must demonstrate that an employer thought he was disabled and that the employer thought that his disability would prevent him from performing a broad class of jobs."
As we noted in Hallahan, our United States Supreme Court has determined that an individual may fall within the provision for being "regarded as" having a disability if: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual non-limiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual. See Hallahan, supra at 708, citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). As with actual impairments, the perceived impairment under the "regarded as" prong must be one that, if real, would substantially limit a major life activity of an individual. See Hallahan, supra at 707, citing Carruthers v. BSA Advertising, Inc., 357 F.3d 1213, 1216 (11th Cir. 2004).
Certainly, LMHD knew that Adams had back problems and knew that the back problems caused some limitation to Adams' activities. Nevertheless, as we have established in Hallahan, mere knowledge of a medical problem does not equate to regarding an individual as having a disabling impairment. See Hallahan at 708. In order to properly analyze whether Adams' allegedly "perceived impairment" substantially limited the major life activity of standing, we note that generally, "substantially" suggests "considerable" or "specified to a large degree." See Sutton, supra at 2150.
As Adams has made clear, he does not assert that he was substantially limited in the major life activity of working. Accordingly, we will not address that portion of the trial court's order and will focus on Adams' assertion that LMHD regarded him as being substantially limited in the major life activity of standing and walking.
The law is clear that an impairment which only moderately or intermittently prevents an individual from performing major life activities is not a substantial limitation under the ADA. See Bryson v. Regis Corp., 498 F.3d 561, 577 (6th Cir. 2007). The EEOC defines "substantially limited" as meaning:
And by extension under KRS 344.
(i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity.
The EEOC regulations define "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." See 29 C.F.R § 1630.2(i). This list is not exhaustive and also includes standing. See Black v. Roadway Express, Inc., 297 F.3d 445 (6th Cir. 2002) (citing 29 C.F.R. § 1630, App. § 1630.2(i)(2001)). Ultimately, the issue of whether a disability discrimination plaintiff's impairment substantially limits a major life activity involves a multilevel analysis of the particular plaintiff's job skills and the nature of the jobs he was prevented from performing as well as those he is still able to perform, and the inquiry looks to the specific plaintiff's education level, training, job skills, expertise, and knowledge in relation to his actual and potential employment status. See Hallahan, supra.
In determining whether an impairment is substantially limiting, the court should consider the nature and severity of the impairment, its duration or expected duration, and its permanent or expected permanent or long-term impact. See 29 C.F.R. § 1630.2(j)(1). As our Kentucky Supreme Court set forth in Baer, the central question to ask in determining if a plaintiff is disabled is whether the claimant is able to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with a particular job." See Baer, supra at 593.
Our review of the record indicates that Adams testified that he was able to stand for 20-30 minutes at a time. Adams testified that he retains the ability to dress himself, shower, shave, drive, work, park his car, walk to his work station, and walk to lunch. Having reviewed the record, it appears that Adams' standing limitation does not limit his ability to perform the variety of tasks included in the daily lives of most individuals. We concur with the Sixth Circuit's opinion that an impairment which only moderately or intermittently prevents an individual from performing major life activities is not a substantial limitation under the ADA. See Bryson v. Regis Corp., 498 F.3d 561 (6th Cir. 2007). Indeed, as set forth in Hallahan, where an impairment is not so severe that it is substantially limiting on its face, a plaintiff must present evidence showing that his restriction reduces his capabilities below those of an average person. See Hallahan, supra at 712.
Accordingly, upon review of the record, we find insufficient evidence to establish that Adams' impairment in fact substantially limited his ability to walk or stand. Unlike the plaintiffs in the cases upon which Adams relies in his brief, we do not find Adams' impairment to rise to the level of the impairments sustained by the plaintiffs therein. Indeed, we note for the record that this was the finding made by our Sixth Circuit Court of Appeals in relation specifically to the disability claim filed by Adams against his former employer, the United States Postal Service.
Adams cites this Court to Kelly v. Drexel University, 94 F.3d 102 (3rd Cir. 1996), Perez v. Philadelphia Housing Authority, 677 F.Supp. 357 (E.D. Pa. 1987), Gordon v. District of Columbia, 480 F.Supp.2d 112 (D.C. 2007), and EEOC v. Sears Roebuck Co., 417 F.3d 789 (7th Cir. 2005). In Kelly, the plaintiff testified to an inability to walk more than a mile or so, an inability to jog, and an inability to climb stairs without having to pace himself more slowly. The court found these limitations insufficient to establish a claim of "substantial limitation," holding that "[t]o rise to the level of a disability, an impairment must significantly restrict an individual's major life activities."
In Perez, the plaintiff was unable to drive, care for her home and child, or engage in leisure pastimes, in addition to receiving specific restrictions from her doctor. Adams, unlike Perez, was not placed on specific restrictions which kept him from work and was able to engage in leisure pastimes, drive, and care for his home.
The plaintiffs in both Gordon and EEOC both suffered from conditions which imposed limitations similar to those outlined in Perez.
See Adams v. Potter, 193 Fed. Appx. 440, 444, 2006 WL 2431118 (6th Cir. 2006)(unpublished) (Attachment B), citing Mays v. Principi, 301 F.3d 866, 869 (7th Cir. 2002), stating, "The number of Americans restricted by back problems to light work is legion. They are not disabled."
As to whether Adams was regarded as being disabled by LMHD, our review of the record again confirms the decision of the trial court. Nowhere do we find evidence that Metro mistakenly believed him to be substantially limited in the performance of the functions of his job or in the functions of major life activities. The record itself does not suggest that Adams provided any indication that he was unable to perform the job for which he was hired, and indeed, reflects that standing and walking were not an essential part of that position.
While Adams has established that LMHD was aware of his back pain and medical treatment, this alone does not rise to the level of an awareness or belief that Adams was unable to perform his job as a result of same. Indeed, Adams' own physician, Dr. Koff, testified as to his belief that the condition was a "short-term scar tissue thing that would clear up with steroids." Further, Dr. Koff did not place restrictions on Adams which prevented him from performing the bulk of his job duties.
Accordingly, even if Adams' diagnosis and treatment were fully and completely disclosed to LMHD prior to the time of his termination, that condition would not have led a reasonable employer to believe that Adams had a qualifying impairment. Accordingly, for the foregoing reasons, we affirm the holding of the trial court that Adams failed to meet his burden in establishing either actual disability or that he was regarded as having same by his employer.
Finally, we note that our review of the record indicates that Adams has failed to provide sufficient evidence in support of his assertion that the explanation given by LMHD for his termination was pretext. Indeed, to demonstrate that an explanation given for termination is pretext, the plaintiff must show that "(1) the proffered reasons are false; (2) the proffered reasons did not actually motivate the decision; and (3) the plaintiff could show that the reasons given were insufficient to motivate the decision." Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 497 (Ky. 2005).
A plaintiff's prima facie case in addition to proof of a pretext may constitute sufficient evidence to survive a motion for a directed verdict, but to survive summary judgment, a plaintiff must not only establish a prima facie case, but must also make a substantial showing that the employer's explanation was false. See Kentucky Department of Corrs. v. McCullough, 12 S.W.3d 130, 134 (Ky. 2003).
In the matter sub judice, we are unable to find that Adams supplied any evidence to establish that the explanation provided by LMHD was false. Firstly, we note that the mere diagnosis of a back ailment requiring "serious medication and continuing care" does not in and of itself establish the existence of a disability under the statute. Indeed, although Dr. Koff diagnosed Adams with a back ailment, there were no restrictions issued which prevented Adams from doing his job. Thus, we cannot conclude that Dr. Koff's diagnosis was the determinative factor that led to Adams' termination.
Secondly, we note that Adams draws our attention to the lack of written reports issued by his coworkers with regard to his conduct prior to termination. LMHD has asserted that after being made aware of the EEOC complaint filed by Adams, counsel requested that they gather statements from coworkers who had previously complained about Adams' conduct. LMHD asserts that as Adams did not file the complaint until after the termination, there was no reason for his coworkers to submit written statements prior to that time. Adams offers no evidence to rebut this explanation or to rebut the claims of his former coworkers. Accordingly, we cannot find that Adams carried his burden of proof on this issue, and therefore, we believe that the court's granting of summary judgment was proper.
In the current case, Adams established that he suffered a spinal impairment that led his physician to recommend temporary restrictions. Viewing the evidence in the light most favorable to Adams, we cannot find that he presented evidence creating an inference that LMHD misperceived his impairment as precluding him from a class of jobs or a broad range of jobs or severely restricting his ability to perform tasks central to daily life such as standing or walking. As a result, Adams failed to create a genuine issue of material fact that he was "disabled" because he was substantially limited in the major life activities of standing or walking or that he was regarded as so by LMHD.
Finally, for the reasons set forth herein, we cannot find that Adams supplied any valid evidence to establish that the explanations provided by LMHD for his termination were false. Therefore, the trial court did not err in holding that there were no genuine issues of material fact in dispute and that LMHD was entitled to summary judgment as a matter of law.
Accordingly, for the foregoing reasons, we hereby affirm the March 18, 2008, order of the Jefferson Circuit Court granting summary judgment in favor of LMHD.
ALL CONCUR.