United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
DAVID J. HALE, District Judge.
Defendant Gordon Food Services, Inc. ("GFS") terminated Plaintiff Ronald Darby from his position as a heavy truck fleet mechanic nearly a year after he was injured on the job. Darby claims that he was terminated in retaliation for pursuing a workers' compensation claim, and that his termination violated the Kentucky Civil Rights Act. He also claims that the termination violated an implied covenant of reasonableness and fair dealing. GFS requests summary judgment on all of Darby's claims. (Docket Nos. 50, 54, 59) Because there are genuine disputes of material fact as to whether GFS's termination of Darby was substantially motivated by his pursuit of a workers' compensation claim and whether he is disabled, the Court will deny GFS's request for summary judgment on those claims. The Court will grant summary judgment for GFS on Darby's claim that the termination of his employment violated an implied covenant.
I. FACTUAL BACKGROUND
Darby began working as a fleet mechanic for GFS in April 2006. As a fleet mechanic, Darby was required to lift and carry heavy material and perform manual labor. On January 4, 2010, Darby injured his left shoulder while using a sledgehammer at work and began a subsequent leave of absence. Darby had surgery on his shoulder in March 2010, followed by surgery on his elbow in August 2010. Darby did not return to work for the remainder of the year. GFS paid workers' compensation benefits to Darby throughout his absence and paid for the medical treatment for his injury. (D.N. 50-1, PageID # 315)
In late December 2010, GFS learned of Darby's work restrictions. The physician who operated on Darby's shoulder issued permanent work restrictions, stating that Darby is able "to function in the medium physical examination category, with some ability to work in heavy physical demand level, but there are particular limitations, including not being able to safely demonstrate the ability to lift more than 55 pounds above the waist level." The physician who operated on Darby's elbow issued similar permanent restrictions, noting: "maximum lifting: 50 lbs. Restricted to 25 lbs with frequent lifting or carrying using both hands." (D.N. 50-1, PageID # 316-17)
At the end of 2010, Darby retained an attorney to assist him with pursuing a workers' compensation claim. On December 20, 2010, Darby's attorney sent a letter to GFS advising GFS that Darby had retained an attorney and stating that any communication regarding the workers' compensation suit must go through Darby's attorney. (D.N. 54, PageID # 509)
Shortly thereafter, GFS management met and discussed Darby's medical restrictions and his job as fleet mechanic. At this meeting, GFS decided to terminate Darby, but GFS did not communicate this decision to Darby until approximately April 25, 2011. Darby filed a formal workers' compensation claim with the Kentucky Department of Workers' Claims on May 16, 2011. At a later workers' compensation proceeding, an Administrative Law Judge found that Darby did not have the capacity to perform the role of fleet mechanic and determined an amount to be awarded to Darby for his permanent partial disability. (D.N. 50-1, PageID # 317-18, 322)
Darby instigated the present action in the Circuit Court for Bullitt County, Kentucky in October 2011. In November 2011, GFS removed the matter to this Court. Darby's complaint asserts three claims. Count I alleges workers' compensation retaliation. Darby asserts that his termination was motivated by his filing and pursuing a workers' compensation claim. In response, GFS asserts that it terminated Darby because GFS did not have any positions available that Darby could perform with his restrictions and because no accommodations that would enable Darby to remain employed were available. Count II alleges disability discrimination. Darby claims that he has a disability under the Kentucky Civil Rights Act ("KCRA"), that he can perform the essential functions of a fleet mechanic with or without reasonable accommodation, that he was terminated because of his disability, and that GFS failed to accommodate his disability. GFS asserts that Darby does not have a disability under the KCRA because he is limited only from performing heavy work and that he never identified a position that he could perform with or without reasonable accommodation. Finally, Count III alleges that Darby was terminated in violation of an implied covenant of reasonableness and fair dealing. GFS argues that because Darby was an at-will employee, he cannot claim a breach of the covenant of good faith and fair dealing. (D.N. 1-1, PageID # 8-10; D.N. 50, PageID # 304-05)
To grant a motion for summary judgment, this Court must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of identifying the basis for its motion and the parts of the record that demonstrate an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies this burden, the non-moving party must show specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
While the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must show specific facts demonstrating that a genuine issue of fact exists by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence... of a genuine dispute." Fed.R.Civ.P. 56(c)(1). The non-moving party must establish a genuine issue of material fact with respect to each element of each of his claims. Celotex, 477 U.S. at 322-23. The mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient. Instead, there must be evidence upon which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 252.
> A. Workers' Compensation Retaliation Claim
The Kentucky workers' compensation statute states that "[n]o employee shall be harassed, coerced, discharged, or discriminated against in any manner whatsoever for filing and pursuing a lawful claim" under the statute. Ky. Rev. Stat. § 342.197(1). An employee qualifies for the protections enumerated in this statute if he has given notice of his injury to the employer and has received some disability benefits, even if he has not filed a formal claim. Overnite Transp. Co. v. Gaddis, 793 S.W.2d 129, 130-31 (Ky. Ct. App. 1990). Kentucky courts use a modified form of the McDonnell Douglas burden-shifting scheme to analyze retaliation claims. Ky. Ctr. for the Arts v. Handley, 827 S.W.2d 697, 701 (Ky. Ct. App. 1991) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1993)). To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a protected activity; (2) the defendant knew that the plaintiff had done so; (3) adverse employment action was taken; and (4) there was a causal connection between the protected activity and the adverse employment action. Dollar Gen. Partners v. Upchurch, 214 S.W.3d 910, 915 (Ky. Ct. App. 2006). Once a prima facie case has been established, the burden shifts to the employer to show a non-retaliatory reason for the adverse employment action. Id. at 916. The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the employer were mere pretext for unlawful retaliation. Id.
While the parties agree that the first three elements of the prima facie test have been established in this case-Darby engaged in protected activity by pursuing a workers' compensation claim, GFS was aware of that activity, and Darby was discharged-the parties dispute the existence of the causation element. To satisfy the causation prong of the prima facie test, Darby need not demonstrate that the sole or primary reason for the termination was the protected activity, but only that his engagement in a protected activity was a "substantial and motivating factor" in GFS's decision to terminate. Id. (citing First Prop. Mgmt. Corp. v. Zarebidaki, 867 S.W.2d 185, 188-89 (Ky. 1993)).
One way a plaintiff can demonstrate a causal connection is by showing a close temporal proximity between a protected activity and an adverse employment action. See Ky. Dep't of Corr. v. McCullough, 123 S.W.3d 130, 135 (Ky. 2003). But when some time passes between when the employer learns of the protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causation. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008); see also Dollar Gen., 214 S.W.3d at 916 (when lacking close temporal proximity, "[t]he logical approach is for the court to view the time between the two events in the context of the entire circumstances"). Furthermore, because there is often a lack of direct ...