Opinion
NO. 2014-CA-001686-MR
06-03-2016
RICKY FAIRROW APPELLANT v. CITY OF MADISONVILLE APPELLEE
BRIEF FOR APPELLANT: Ricky Fairrow, pro se Madisonville, Kentucky BRIEF FOR APPELLEE: Stacey A. Blankenship Kristen N. Worak Paducah, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 12-CI-00553 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND MAZE, JUDGES. MAZE, JUDGE: Ricky Fairrow appeals from an order of the Hopkins Circuit Court granting summary judgment in favor of the City of Madisonville (hereinafter "City") in Fairrow's suit alleging wrongful termination in violation of the Kentucky Civil Rights Act (KCRA). We agree with the trial court that Fairrow was not qualified for the position from which he was discharged. Therefore, Fairrow failed to establish a prima facie case of discrimination, and we affirm summary judgment in favor of the City.
Background
Fairrow was employed as a truck driver with the City. In April 2010, Fairrow attended a meeting held for sanitation department employees which the City's then-mayor, Will Cox, also attended. According to Fairrow, upon whose account of the facts the City relied for its motion for summary judgment, Mayor Cox made a comment to Fairrow in front of the group which seemed personal. Soon thereafter, Fairrow and the Mayor exchanged words in a stairway. The next week, Fairrow was surprised by a meeting with the Mayor during which he alleged that the following exchange occurred:
Fairrow's initial account of events comes from a May 16, 2010 document written by his daughter-in-law at his direction and which he labeled as a complaint. The record indicates that Fairrow sent this document to the Equal Employment Opportunity Commission and the Kentucky Workers' Compensation Board as part of a workers' compensation claim. It was entered into the record at Fairrow's February 11, 2014 deposition.
MAYOR: Ricky, are you married?
FAIRROW: Yes sir, she is a nice lady.
MAYOR: Do you have any children?
FAIRROW: Yes, sir, I have two boys and so does my wife. Both of our youngest two live at home now.
MAYOR: Does your wife work?
FAIRROW: Yes, sir, she works at the V.A. and has since they opened their doors.The meeting eventually ended with the Mayor telling Fairrow to "drive safely and don't have [a] wreck." Fairrow's initial account of his conversation with Mayor Cox mentioned no references to his race, by Mayor Cox or anyone else.
MAYOR: Do you think you can make it on just her income?
FAIRROW: No, sir, I don't. I imagine it would be hard on us.
MAYOR: Because you're about this far away from being fired [gesturing to indicate a small distance]. You know why.
FAIRROW: No I don't.
MAYOR: Because you were running your mouth going down the steps.
Following this meeting, Fairrow began experiencing work-related anxiety and stress for which he sought psychiatric treatment. He also notified his supervisor of this and that he was seeking treatment. Fairrow's physician eventually diagnosed him with depression and anxiety related to his employment. Fairrow sought medical leave under the Family and Medical Leave Act (FMLA). He initially received twelve weeks of leave, ending on September 20, 2010. However, the City extended this leave by eight weeks, requiring him to return to work on November 8. Three weeks before he was due to return to work, Fairrow obtained a note from his physician stating that he would "never resume his work with the sanitation dept. due to his mental illness arising from on the job stress there." Fairrow provided this note to the City, and he did not return to work on November 8. On November 10, 2010, the City notified Fairrow by letter that his employment had been terminated "due to [his] status of not being able to return to work."
On June 21, 2012, Fairrow filed his Complaint in the present action claiming that the City terminated and discriminated against him because of his race and psychiatric diagnosis. He alleged, inter alia, that at the April 2010 department meeting, Mayor Cox "verbally assaulted Fairrow calling him names and using vulgar, [vile] and racial epithets." The Complaint stated that the Mayor's conduct at his meetings with the department and Fairrow, as well as the City's alleged failure "to reasonably accommodate him as a result of his [resulting] disability[,]" were part of a continuing pattern of discriminatory behavior by Mayor Cox or the City. Fairrow claimed that he had suffered wrongful termination, embarrassment, humiliation, loss of income, medical expenses, and mental anguish as the result of the City's actions and that these actions constituted a violation of KCRA. Discovery ensued, including interrogatories and Fairrow's deposition. During his lengthy deposition, Fairrow alleged that, during his meeting with Mayor Cox, the Mayor threatened to fire his "black ass."
In a later filing, Fairrow alleged that Mayor Cox also told him repeatedly to "shut [his] black ass up." Again, this was not included in Fairrow's initial narrative recounting their May 2010 meeting.
On July 21, 2014, the City filed a motion for summary judgment in which it argued that Fairrow had failed to establish a prima facie case of discrimination based upon race or disability, as required under Kentucky and federal law. In granting the City's motion, the trial court held that Fairrow failed to point to any evidence in the record establishing workplace misconduct permitting relief under KCRA. On this basis, the trial court held that Fairrow could not establish a prima facie case of discrimination and had provided no affirmative evidence in opposition to the City's position on summary judgment. This appeal follows.
Standard of Review and the Summary Judgment Standard
The standard of review governing an appeal of a summary judgment is well-settled. Since a summary judgment involves no fact-finding, this Court's review is de novo, in the sense that we owe no deference to the conclusions of the trial court. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).
"The proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). In essence, for summary judgment to be proper, the movant must show that the adverse party cannot prevail under any circumstances. Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985). Therefore, we will find summary judgment appropriate only "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 a judgment as a matter of law." CR 56.03.
Kentucky Rules of Civil Procedure.
Analysis
KCRA makes it unlawful for an employer 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 ... [or] because the person is a qualified individual with a disability.KRS 344.040(1)(a). Fairrow's complaint alleged discrimination on the basis of his race and mental disability; and the trial court concluded that the City was entitled to judgment as a matter of law on both claims.
Kentucky Revised Statutes. --------
Kentucky law tracks federal law for purposes of what a claimant must show in order to sustain a claim of workplace discrimination. See Jefferson Cnty. v. Zaring, 91 S.W.3d 583 (Ky. 2002). Generally, "[t]he complainant ... must carry the initial burden under the statute of establishing a prima facie case of ... discrimination. ... The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). Finally, the claimant must be "afforded a fair opportunity to demonstrate that [the employer's] assigned reason ... was pretext or discriminatory in its application." 411 U.S. at 807, 93 S. Ct. at 1826-27. A claimant may establish that an employer's explanation is pretextual or not credible "by demonstrating either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge." Madden v. Chattanooga City Wide Service Dept., 549 F.3d 666, 675 (6th Cir. 2008) (citations and internal quotation marks omitted). It is under this well-established law that we examine Fairrow's allegations of discrimination based upon his race and disability.
I. Fairrow's Allegation of Race Discrimination
Under McDonnell Douglass and KCRA, to establish a prima facie case of racial discrimination in his treatment and termination by the City, Fairrow must show that he was 1) a member of a protected class; 2) discharged; 3) qualified for the position he held; and 4) replaced by a person outside the class or treated differently than a similarly situated, non-protected employee. See Mitchell v. Toledo Hosp., 964 F.2d 577, 581 (6th Cir. 1992) (citing McDonnell Douglass); see also White v. Baxter Healthcare Corp, 533 F.3d 381, 391 (6th Cir. 2008).
The City does not contest that Fairrow, as an African American, is a member of a protected class, nor does it contest that he was discharged. The City argues that Fairrow was not qualified for the position he held because he could not, and did not, return to work, as evidenced by the doctor's note Fairrow provided which announced his permanent inability to continue in his work with the City.
We must assess Fairrow's qualification for his position objectively. Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 575 (6th Cir. 2003). Fairrow can establish his qualification for his position, and hence satisfy that element of his prima facie case, "by presenting credible evidence that his ... qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field." Id. at 576.
We agree with the City that Fairrow lacked a basic qualification for his continued employment as a truck driver for the City. Fairrow does not contest that he provided the City a doctor's note which announced that he would never be able to return to his position with the City. Attendance, or the physical ability to show up and perform a given task, is an objective and basic qualification for employment. Therefore, Fairrow cannot demonstrate a genuine issue of material fact as to whether he was qualified for the position from which the City discharged him. Fairrow is unable to carry his burden of establishing a prima facie case that his termination constituted racial discrimination; and that claim must fail as matter of law.
For similar reasons, we further agree with the city that even if Fairrow were able to make his prima facie showing, there is nothing in the record to suggest that his firing was motivated by anything other than his announced and demonstrated unwillingness or inability to return to work when required. In other words, no genuine issues of material fact remain concerning whether the City's given reason for terminating Fairrow was pretext for discrimination.
II. Fairrow's Allegation of Disability Discrimination
For purposes of establishing a prima facie case of discrimination based upon an employee's disability, still within the McDonnell Douglass framework, Fairrow was required to show that: (1) he had a disability; (2) he was otherwise qualified to perform the requirements of the job, with or without reasonable accommodation; and (3) he was discharged because of his disability. See Hallahan v. The Courier-Journal, 138 S.W.3d 699, 706-07 (Ky. App. 2004) (citing Henderson v. Ardco, Inc., 247 F.3d 645 (6th Cir. 2001)) (internal quotation marks omitted). KRS 344.010(4) defines a "disability" as: "(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."
Again, it is uncontested that Fairrow is disabled and was discharged. Rather, the City again argues that Fairrow cannot prove, and has presented no evidence of record, that he "was otherwise qualified to perform the requirements" of the position he held "with or without reasonable accommodation[.]" The City contends that Fairrow failed to request accommodation, instead choosing to announce that he simply could not return to work at all, disqualifying him for his position and justifying termination. We agree with the City.
The record is uncontroverted that Fairrow was unqualified for his position as a truck driver once he failed to resume work after exhausting his FMLA leave. Similar to our analysis concerning his race discrimination claim, it was impossible for Fairrow to "perform the requirements" of his position when he would not even show up for work. In at least one filing in the record, Fairrow himself states that he did not require accommodation and that he was following the advice of his physician in not returning to work. While this apparent inability or unwillingness to attend work was expressly due to his psychiatric diagnosis and his experiences at work, it is nevertheless the case that it disqualified him for his position. Hence, an essential element of Fairrow's disability discrimination claim is missing, and that claim must also fail.
Conclusion
There is no genuine issue of material fact regarding Fairrow's ability to establish a prima facie case of either race-based or disability-based discrimination. He cannot. Therefore, the City was entitled to judgment as a matter of law, and we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Ricky Fairrow, pro se
Madisonville, Kentucky BRIEF FOR APPELLEE: Stacey A. Blankenship
Kristen N. Worak
Paducah, Kentucky