Opinion
NO. 2015-CA-001795-MR
05-26-2017
KAREN C. TANNER APPELLANT v. JEFFERSON COUNTY BOARD OF EDUCATION APPELLEE
BRIEF FOR APPELLANT: Samuel G. Hayward Louisville, Kentucky BRIEF FOR APPELLEE: Christopher Tyson Gorman Brittany Lynn Hampton Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 13-CI-000865 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON AND D. LAMBERT, JUDGES. DIXON, JUDGE: Appellant, Karen Tanner, appeals from an order of the Jefferson Circuit Court granting summary judgment in favor of the Jefferson County Board of Education ("Board") and dismissing her claim for disability discrimination. Finding no error, we affirm.
Tanner was employed for several years as a middle school teacher at Thomas Jefferson Middle School ("TJMS") in Louisville, Kentucky. During her employment, Tanner taught sixth grade Math, Arts and Humanities, as well as Technology. During the 2008-2009 school year, Tanner was in charge of the Student Technology Leadership Program. On August 18, 2009, shortly after the beginning of the 2009-2010 school year, TJMS's principal, Kimberly Gregory, notified her staff that, due to teacher overstaffing, teachers would potentially be reassigned to teach different subjects. Gregory noted that teachers would be reassigned in a manner "consistent with the primary certification of the teacher, and what would be the least amount of change regarding the teachers based on the needs of TJMS and the availability and qualification about the teachers." On that same day, Tanner filed a Request for Medical Leave from August 24 until September 30, 2009. Tanner had previously sent an email to Gregory the day before informing her that she was proceeding with a request for 4-8 weeks of medical leave pending the outcome of a doctor's appointment scheduled that same day. Tanner did not disclose in the email to Gregory any details as to the reason for the medical leave.
That paper work was not received and filed until August 21, 2009.
On August 21, 2009, Tanner was notified that she would be reassigned from Technology to Arts and Humanities when she returned from medical leave. Two days later, Tanner sent an email to several 8th grade students requesting that they "box up her items, clean out her desk and remove posters, etc." Apparently, this caused a disruption as the students began gathering Tanner's things as a substitute teacher was attempting to teach in the classroom. As a result, Gregory contacted the board's Employee Relations department to report Tanner's inappropriate contact with the students in directing them to pack up her classroom without supervision. Tanner thereafter received a letter from Gregory notifying her that she was required to attend a disciplinary meeting upon returning from medical leave and advising her that she should contact her union representative.
On August 25, 2009, Tanner filed an application with the Kentucky Teachers' Retirement System requesting disability retirement benefits. On September 23, 2009, Tanner was informed that her application for disability retirement had been approved. As a result, she neither returned to TJMS nor was subjected to any disciplinary action as a result of the classroom incident.
On February 21, 2013, Tanner filed an action in the Jefferson Circuit Court against the Board claiming that it discriminated against her on the basis of her real or perceived disability in violation of KRS 344.040. Specifically, Tanner alleged that her reassignment to teach Arts and Humanities was an adverse employment action. Following discovery, the Board filed a motion for summary judgment on March 15, 2015, asserting that it was entitled to judgment as a matter of law on the grounds that Tanner failed to establish her prima facie case of disability discrimination. Specifically, the Board argued that (1) Gregory, who was solely in charge of teacher reassignment, was unaware of Tanner's real or perceived disability; (2) Tanner failed to request an accommodation with the required specificity; (3) Tanner was not "otherwise qualified" to perform the essential functions of her job, with or without reasonable accommodation, based on her application for and acceptance of disability benefits, which were available only because Tanner and her medical providers certified that she could not perform the essential functions of a teacher; and (4) Tanner's proposed lateral transfer to teach Arts and Humanities did not amount to an adverse employment action or constructive discharge. Finally, JCBE argued that even if Tanner could establish a prima facie case of disability discrimination, Gregory had a legitimate, nondiscriminatory reason for reassigning Tanner.
On September 15, 2015, the trial court entered an order granting the Board's motion for summary judgment. Therein, the trial court found that the record was devoid of any affirmative evidence that Gregory was aware of Tanner's disability when she made the decision to reassign Tanner. The trial court further concluded that Tanner's reassignment constituted a lateral transfer rather than an adverse employment action. Finally, the trial court noted that even if it were to rule that Tanner established a prima facie case, the Board articulated a legitimate nondiscriminatory reason for the reassignment and Tanner failed to establish any pretext of the part of JCBE. The trial court subsequently denied Tanner's motion to reconsider. This appeal ensued.
Our standard of review on appeal of a summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56.03. The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id. Finally, given the similar language and the stated purpose of the Kentucky Civil Rights Act, KRS Chapter 344, to embody the federal civil rights statutes, including the Americans with Disabilities Act (ADA), this court may look to federal case law in interpreting Kentucky's Act with respect to Tanner's claim of disability discrimination under KRS 344.040. Hallahan v. The Courier-Journal, 138 S.W.3d 699, 706 (Ky. App. 2004); see also 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)); Brohm v. JH Properties, Inc., 149 F.3d 517, 520 (6th Cir. 1998); KRS 344.020(1)(a); compare 42 U.S.C. § 2000 e-2(a)(1) with KRS 344.040(1).
Kentucky's Civil Rights Act makes it an unlawful employment practice "[t]o 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 the person is a qualified individual with a disability." KRS 344.040(1)(a). Pursuant to KRS 344.010(4), disability, with respect to an individual, means "(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." An individual will be regarded as disabled, "if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." ADA Amendments Act of 2008, 42 U.S.C. § 12102(1)(C).
In a disability discrimination case, the plaintiff bears the burden of establishing a prima facie case of discrimination. Hallahan, 138 S.W.3d at 706. In order to establish a prima facie case of disability discrimination, a plaintiff must show: (1) she has a "disability," as defined under the statute; (2) she was "otherwise qualified" to perform the requirements of the job, with or without reasonable accommodation; and (3) she suffered an adverse employment decision because of the disability. Id. at 706-07.
If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a "legitimate nondiscriminatory reason" for the adverse employment action. Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 497 (Ky. 2005). If the defendant carries this burden, the plaintiff "must typically demonstrate that the employer's stated reason for the termination was merely a pretext, masking the discriminatory motive." Id.
Tanner first argues that the trial court erred in finding that there was no evidence in the record to establish that Gregory was aware that Tanner had a disability at the time she made the reassignment. While acknowledging that she was required to show that Gregory knew or had reason to know of her disability, Tanner contends that such may be inferred, depending on the factual circumstances. Thomas v. Mechanical Consultants, Inc., 655 F.Supp.2d 756 (W.D. Ky. 2009). Tanner argues that Gregory was made aware that she was suffering from anxiety and depression through the following email exchange that took place between the two on August 18-19, 2009, regarding the possibility that she would be transferred to another teaching position:
Tanner: "My current health condition will only worsen if I am faced with the monumental stress of replacement."
Gregory: "If your doctors are telling you that you need to be on medical leave, then you need to follow those recommendations despite what may or may not happen at [TJMS]. Your health needs to be your primary concern."Significantly, during Tanner's deposition, she conceded that she never specifically disclosed to Gregory that she had any sort of specific mental diagnosis or disability and that she essentially assumed that Gregory would "read between the lines" in her e-mails.
Tanner: "I cannot perform 100% for my kids right now if I am not 100%. If my placement changes, that will create monumental stress for me which will only decline my health more. . . . If I need to put off my leave to keep my Technology job secure, I will just have to do it as the added stress to job change weighs greater over my current condition in the long run. . . . I'm totally near panic with both issues right now! - my health and my job.
Tanner: "It was only after learning about [the reassignments] last night that I began to wonder [whether to take FMLA leave]. I just feel even more sick now . . . and scared that I cannot make a right decision either way. . . . Obviously, from my position now, the thought of more stress seems to be a threat of things going backwards for me health wise."
Tanner's argument fails to take into account that an "employer must know about a disability before it can intentionally discriminate against an employee based on that disability. Otherwise, it could not be said that the employer discriminated 'because of' the disability." Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 881 (6th Cir. 1996) (citing 42 U.S.C. § 12112(a)). See also Landefeld v. Marion General Hospital, Inc., 994 F.2d 1178, 1181-82 (6th Cir. 1993). As noted by the Eleventh Circuit Court of Appeals in Morisky v. Broward County, 80 F.3d 445, 448 (11th Cir. 1996), "[v]ague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA." In other words, "[d]iscrimination is about actual knowledge, and real intent, not constructive knowledge and assumed intent." Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1183 (11th Cir. 2005) (citation omitted).
The Court in Kocsis was analyzing a disability discrimination cases brought under the Americans with Disabilities Act (ADA) rather than the KCRA, but as previously noted, the KCRA "was modeled after federal law and our courts have interpreted the Kentucky Act consistently therewith." Howard Baer, Inc., 127 S.W.3d at 592. --------
We are of the opinion that Tanner failed to show that Gregory knew she suffered from anxiety, depression, or any other disability. In her affidavit, Gregory stated as follows:
When Ms. Tanner informed me she would be starting the school year a few weeks and then taking a few weeks off thereafter, I assumed (incorrectly) she was having some sort of elective procedure. I had no knowledge of her specific condition and no idea she was taking leave for anxiety and depression.Subsequently, in her deposition Gregory testified that although she knew Tanner was having some sort of health issue, Tanner never disclosed the nature or extent of such. We must agree with the trial court that Tanner's emails simply did not inform or create an awareness on the part of Gregory with regard to Tanner's disability. As the trial court noted, "[a]t best, the e-mail messages establish that Tanner was concerned about the stress that the position change might create."
Viewing all of the evidence of record, we are compelled to conclude, as did the trial court, that while Gregory may have been aware that Tanner was having some health problems, there simply is no affirmative evidence that she was aware that Tanner suffered from a disability at the time she reassigned her to teach Arts and Humanities, a subject that she had previously taught and for which she held the appropriate certifications.
Tanner next argues that the trial court erred in finding that her reassignment to the Arts and Humanities position was a lateral transfer rather than an adverse employment action. Specifically, Tanner contends that, upon reassignment, she "was stripped of her title as head of the Student Technology Leadership Program (STLP), as well as, her title of Co-Coordinator of technology throughout all of TJMS." She claims that such is evidence of "significantly diminished material responsibilities, or other indices unique to a particular situation." We disagree.
In order to satisfy the "adverse employment action" prong of a prima facie case of disability discrimination, the plaintiff must show that there was a "materially adverse" employment action, which may be evidenced by a "termination of employment . . ., a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation." Wilson v. Dana Corp., 210 F.Supp.2d 867, 884 (W.D. Ky. 2002) (quoting Hollins v. Atlantic Company, Inc., 188 F.3d 652,662 (6th Cir. 1999)). In White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 798 (6th Cir.2004), the Sixth Circuit Court of Appeals held that, to be adverse, an employment action must "constitute[ ] a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Further, a plaintiff "must show that she suffered 'a materially adverse change in the terms of her employment.'" Id. at 797 (quoting Kocsis, 97 F.3d at 885). On the other hand, in the employment discrimination context, "[a] 'mere inconvenience or an alteration of job responsibilities' or a 'bruised ego' is not enough to constitute an adverse employment action." Id. As explained in Kocsis, "reassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination cases." 97 F.3d at 885.
"The clear trend of authority is to require that a transfer with no change in wages or benefits amount to a 'constructive discharge' to be actionable as an 'adverse employment action.'" Darnell v. Campbell County Fiscal Court, 731 F. Supp. 1309, 1313 (E.D. Ky. 1990) (citation omitted). To demonstrate constructive discharge, the plaintiff must show "(1) the employer deliberately created intolerable working conditions, as perceived by a reasonable person, (2) the employer did so with the intention of forcing the employee to quit, and (3) the employee actually quit." Regan v. Faurecia Automotive Seating, Inc., 679 F.3d 475, 481 (6th Cir. 2012) (citing Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012)). "A transfer involving loss of prestige or an objectively demeaning change of working conditions—such as removal from a private office—can amount to a constructive discharge. . . . Subjective considerations are insufficient." Darnell, 731 F.Supp. at 1313 (citations omitted). See also Kelleher v. Flawn, 761 F.2d 1079, 1086 (5th Cir. 1985) (a plaintiff's "[s]ubjective impressions as to the desirability of one position over another" is not controlling.)
Herein, Tanner was reassigned to a position with the same pay, duties and grade level. We believe that a reasonable person would not deem a reassignment to a formerly taught subject at the same school for the same pay as creating "intolerable conditions that a reasonable person could not expect to bear." Id. While Tanner believes that teaching Arts and Humanities rather than Technology is a "reassignment to menial work" the law is clear that a "materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Hollins, 188 F.3d at 662 (quoting Crady v. Liberty National Bank & Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.1993)). As such, we agree with the trial court that the reassignment from Technology to Arts and Humanities was a lateral transfer and not "materially adverse as viewed by a reasonable person in the same circumstances."
Although not addressed by the trial court in its opinion, we agree with the Board that Tanner also cannot satisfy the second element of her prima facie case, namely demonstrating that she was "otherwise qualified" to perform the essential functions of a teacher with or without reasonable accommodation. See Murray v. Eastern Kentucky University, 328 S.W.3d 679, 682 (Ky. App. 2009). In the trial court, Tanner argued that she carried her burden of proof because she was "more than qualified [at the time of the reassignment] to teach any position" at TJMS based on her nine years of teaching after being diagnosed with stress and anxiety. Tanner seemingly ignores, however, that her application for disability retirement benefits makes proof of the "otherwise qualified" element an impossibility. As part of the process of applying for disability retirement, Tanner was required to undergo an examination by a physician to ascertain her eligibility for those benefits. According to the physician's report dated August 28, 2009, Dr. Jeffrey Figa determined that Tanner was "currently unable to provide continued employment as an effective school instructor." In a subsequent report, dated August 31, 2009, another medical provider determined that Tanner was "unable to function as a teacher at this time" and was "disabled to perform her duties as a teacher." The latter report was based on examinations of Tanner on June 9, 2009, August 22, 2009, August 26, 2009, and August 31, 2009. Subsequently, on September 23, 2009, Tanner was informed that her application for disability retirement had been approved with an effective date of September 1, 2009. The letter expressly provided, in pertinent part:
Disability retirants may not serve as a teacher in any capacity and you are required to notify the Retirement Office if you engage in any gainful occupation because there are definite limitations that you must observe. The Teachers' Retirement Law requires periodic examinations to determine your continued eligibility and you will be advised when such examinations are necessary.Tanner was also required to execute an annual Disability Earning Affidavit to remain on disability, which provided, in pertinent part, "Members retired on disability are prohibited from any type of employment related to teaching or education related work."
"[T]he 'otherwise qualified' inquiry requires a consideration not only of the [disabled individual's] ability to perform the job's essential function, but also whether a reasonable accommodation by the employer would enable the [individual] to perform those functions." Hall v. U.S. Postal Service, 857 F.2d 1073, 1078 (6th Cir. 1988). Thus, a disabled employee will be considered "otherwise qualified" if a reasonable accommodation by the employer would render the employee capable of performing the essential functions of the job. Id.
There is no affirmative evidence in the record that Tanner actually requested any specific accommodation. Notwithstanding, because she certified her complete disability in order to obtain disability retirement, she was not "otherwise qualified" for any teaching position and thus no reasonable accommodation was even possible. As such, any argument that she maintained the ability to perform the essential functions of a teaching position was lost. Even assuming arguendo, that she was able to perform the essential functions of her job with reasonable accommodation on the date of the reassignment, such could only relate to the brief period of time from August 21, 2009 (when she received the notice of reassignment) until September 1, 2009 (the effective date of her retirement benefits). The record indicates, however, that Tanner received her regular salary until August 21, 2009, after which she was paid sick leave while on medical leave until September 1, 2009, when the disability benefits became effective. Accordingly, at no time was she denied any benefits of her employment.
Based upon a review of the record herein, we conclude that the trial court properly found that Tanner failed to establish a prima facie case of disability discrimination as a matter of law. However, we further agree with the trial court that even if Tanner could establish her prima facie case the Board articulated a legitimate nondiscriminatory reason for the reassignment. Tanner's claim that Gregory used impermissible guidelines or reasons for reassigning her is not supported by the record. Tanner was reassigned based on the need to move teachers around at TJMS because the anticipated enrollment for the 2009-2010 school year was lower than expected and the number of staff hired at the school had to be reduced due to budget constraints. Tanner has produced absolutely no evidence that her reassignment was motivated by anything other than overstaffing issues. Tanner was qualified to teach Arts and Humanities and her move to that position was motivated by educational need. Under such circumstances, Gregory's proffered reason for Tanner's reassignment was neither pretextual nor a cover-up for discrimination.
For the reasons stated herein, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Samuel G. Hayward
Louisville, Kentucky BRIEF FOR APPELLEE: Christopher Tyson Gorman
Brittany Lynn Hampton
Louisville, Kentucky