Opinion
NO. 2017-CA-000760-MR
08-03-2018
LAKES HA BROWN APPELLANT v. OLAMETER CORPORATION APPELLEE
BRIEF FOR APPELLANT: Kurt A. Scharfenberger Louisville, Kentucky BRIEF FOR APPELLEE: Craig P. Siegenthaler Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 16-CI-001285 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL, AND THOMPSON, JUDGES. DIXON, JUDGE: Lakesha Brown appeals from a Jefferson Circuit Court order granting summary judgment in favor of her former employer, Olameter Corporation. After reviewing the record on appeal, we affirm.
Brown worked as a meter reader for Olameter, a third-party contractor for utility companies in the Louisville area. On February 23, 2016, while walking her route, she was chased by a dog and fell backward, landing on her right shoulder. Brown reported the incident to her supervisor, David Katrana, and she went home to rest for the remainder of the work day. The next day she advised Katrana she was experiencing increased pain, and he arranged for her to obtain treatment at U.S. HealthWorks. She was treated and released to return to work with the restriction of no prolonged standing or walking. Brown also sought treatment from her personal physician for a sinus infection, and she was excused from work for two days. Brown returned to work at Olameter on March 1, 2016, and she was assigned to a "drive route" that allowed her to sit in a company vehicle to read meters and required only minimal standing or walking. At a follow-up appointment at U.S. HealthWorks on March 3, 2016, Brown was authorized to continue working with the same restrictions of no prolonged standing or walking. The next day, Brown was assigned a "critical route," which indicated the route had to be completed the same day to comply with Olameter's contract with the utility company. Brown completed a portion of the route and returned to the Olameter office to clock-out for the rest of the day because she felt ill due to her on-going sinus infection. Brown's supervisor, Katrana, asked her to finish the assigned critical route, which still had 102 meters that needed to be read. Brown refused to return to her route, asserting she did not feel well. Katrana then terminated Brown's employment for failing to complete her assigned duties and leaving work without approval. After her termination, Brown filed a formal claim for workers' compensation benefits and sought additional treatment for her shoulder injury. In June 2016, Brown's treating orthopedist, Dr. Stacie Grossfeld, diagnosed a shoulder contusion and restricted Brown from any overhead lifting. Thereafter, Brown continued treating with Dr. Grossfeld, and she ultimately had surgery to address her shoulder issue.
On March 18, 2016, Brown filed a complaint against Olameter in Jefferson Circuit Court alleging disability discrimination, workers' compensation retaliation, and disability retaliation under KRS 344.280(1). After a period of discovery, Olameter moved for summary judgment. The trial court issued an opinion and order granting summary judgment in favor of Olameter on May 2, 2017.
Brown now contends the court erred by granting summary judgment because genuine issues of material fact existed regarding her disability discrimination and workers' compensation retaliation claims.
Brown's appellate brief does not address her claim of disability retaliation under KRS 344.280(1); therefore, we consider only her disability discrimination and workers' compensation retaliation claims in this opinion. --------
Standard of Review
To prevail on a motion for summary judgment, the movant must show "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). "Only when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor should the motion for summary judgment be granted." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
I. Disability Discrimination
Brown contends her termination constituted impermissible disability discrimination. Olameter contends, however, that summary judgment was proper because Brown was unable to establish a prima facie case of discrimination.
Under the Kentucky Civil Rights Act, it is unlawful for an employer to discharge an employee "because the person is a qualified individual with a disability . . . ." KRS 344.040(1)(a). We note that the KCRA is based upon federal law, and our courts interpret the Act in accordance with federal precedent. Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003).
To establish a prima facie case of disability discrimination, the movant must show: "(1) that he had a disability as that term is used under the statute (i.e., the Kentucky Civil Rights Act in this case); (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." Hallahan v. The Courier-Journal, 138 S.W.3d 699, 706 (Ky. App. 2004). KRS 344.010(4)(a) defines "disability" as: "A physical or mental impairment that substantially limits one (1) or more of the major life activities of the individual[.]"
In addressing this issue below, the circuit court concluded Brown's evidence failed to raise a genuine issue of material fact to withstand Olameter's motion for summary judgment. We have reviewed the record and fully agree with the court's analysis. The court explained, in relevant part:
At the time of Brown's termination, her restrictions from her physician included no prolonged standing or walking. There were no lifting restrictions or indications that she had limited use of her right upper extremity. Those reports did not come until months after Brown's termination. The court acknowledges that Brown was physically injured and required medical treatment; however, her own physician authorized her to work with limited restrictions. Her injury did not substantially limit a major life activity rendering her "disabled" within the meaning of the KCRA.
Even if the court were to find that Brown was disabled, Brown has not shown that she suffered an adverse employment action because of the disability. Upon returning to work, Olameter assigned Brown to "drive routes" to comply with her physician's restrictions that she not engage in prolonged periods of walking or standing. She completed several days of assigned drive routes. There is no evidence that she complained that she could not perform these routes. She then refused to finish her route on March 4, 2016, and there is no
evidence to suggest that her refusal to complete her route was based on her back injury. Her own testimony is that she was not feeling well due to a sinus condition and chose not to finish her route. Olameter asked Brown to complete the critical route, but Brown refused to do so. Therefore, the Court finds that Brown has not shown that she suffered an adverse employment action because of a disability.
If the Court were to find that Brown had established a prima facie case of Disability Discrimination, the Court still finds that Olameter has presented sufficient evidence that it had a legitimate, non-discriminatory reason for terminating Brown's employment. The drive route was within her physician's restrictions and was a reasonable accommodation. Brown was told that if she failed to complete her critical route, she would be terminated. Yet, she refused to complete the route because she was not feeling well due to a sinus condition. Katrana's deposition indicates that at least eight other employees have been terminated for failing to complete a critical route. Olameter has shown a non-discriminatory reason for Brown's termination, rebutting any prima facie showing. Having done so, the burden then shifts back to Brown to "produce specific evidence of pretext to avoid summary judgment." Harker v. Fed. Land Bank of Louisville, 679 S.W.2d 226, 230 (Ky. 1984). Brown has not presented any specific evidence that Olameter's reasons were a pretext for discrimination. Thus, her claim for Disability Discrimination fails as a matter of law and summary judgment is appropriate.
II. Workers' Compensation Retaliation
KRS 342.197(1) states: "No employee shall be harassed, coerced, discharged, or discriminated against in any manner whatsoever for filing and pursuing a lawful claim under [the workers' compensation] chapter." Our Court has interpreted this provision as protecting an injured worker whether he files a formal compensation claim, or if he pursues other benefits available under the statute. Overnite Transp. Co. v. Gaddis, 793 S.W.2d 129, 132 (Ky. App. 1990). Additionally, to establish a claim for retaliation, the movant must prove that "filing or pursuing a workers' compensation claim was a substantial motivating factor in causing his discharge." First Property Mgmt. Corp. v. Zarebidaki, 867 S.W.2d 185, 189 (Ky. 1993).
Brown contends summary judgment was improper because a disputed issue of fact existed regarding the reason Brown's employment was terminated. To support her argument, Brown relies on her post-deposition affidavit, which wholly contradicts her earlier deposition testimony as to the circumstances surrounding her termination. However, it is well-settled that, "an affidavit which merely contradicts earlier testimony cannot be submitted for the purpose of attempting to create a genuine issue of material fact." Lipsteuer v. CSX Transp., Inc., 37 S.W.3d 732, 736 (Ky. 2000).
Brown was clearly unable to establish that her workers' compensation claim was a "substantial motivating factor" causing her termination. There is nothing in the record that suggests Brown was terminated because she was pursuing workers' compensation benefits for her work injury; rather, the evidence supports a conclusion Brown was terminated because she failed to complete the critical route and left work early. After reviewing the record, we conclude Olameter had a legitimate reason for terminating Brown, and she failed to establish that her pursuit of benefits was a substantial factor in her discharge. The trial court correctly granted summary judgment on this issue.
For the reasons stated herein, the order of Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kurt A. Scharfenberger
Louisville, Kentucky BRIEF FOR APPELLEE: Craig P. Siegenthaler
Louisville, Kentucky