United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge.
matter comes before the Court on Defendant's Motion for
Summary Judgment (DN 20) and Plaintiff's Cross-Motion for
Summary Judgment (DN 25). For the following reasons,
Defendant's Motion for Summary Judgment (DN 20) is
GRANTED IN PART and DENIED IN PART, and Plaintiff's
Cross-Motion for Summary Judgment (DN 25) is DENIED.
Winona Ashby (“Ashby”) began her employment as a
machine operator with Defendant Amscan, Inc. d/b/a Deco Paper
Products (“Amscan”) on April 23, 2010. (Pl.'s
Cross Mot. Summ. J. Ex 1, ¶¶ 8-9, DN 25-2
[hereinafter Def.'s Answer to Interrog.]). Ashby's
employment was terminated on April 29, 2015, when she
returned to Amscan after taking a leave of absence pursuant
to the Family and Medical Leave Act (“FMLA”).
(Ashby Dep. 43:9-44:9, July 25, 2016, DN 25-3). Amscan's
stated reason for Ashby's termination was that she
exceeded the allotted twelve weeks of FMLA leave time by four
days. (Pl.'s Cross Mot. Summ. J. Ex 8, DN 25-9
[hereinafter Termination Letter]). This current action stems
from the termination.
utilized FMLA leave on two occasions during her last year of
employment with Amscan. The first instance began on May 30,
2014, when Ashby submitted a Certification of Healthcare
Provider for Employee's Serious Health Condition
(“FMLA Certification”) to Amscan's Human
Resource's manager, Shannon Robinette, verifying her need
for medical leave due to depression and anxiety (“
“2014 FMLA leave”). (Pl.'s Cross Mot. Summ.
J. Ex 3, DN 25-4 [hereinafter FMLA Certification I]).
Ashby's son had recently been diagnosed with AIDS, and
Ashby used the 2014 FMLA leave to care for her son and to
seek medical treatment for her own mental health resulting
from her son's diagnosis. (Ashby Dep. 30:18-31:14). Ashby
initially used about three weeks of leave and subsequently
used FMLA leave intermittently. (Ashby Dep. 31:18-25).
second FMLA leave began on March 6, 2015, when she fell at
her home and fractured her ankle (“2015 FMLA
leave”). (Ashby Dep. 36:6-38:11). Ashby's physician
completed the FMLA Certification and delivered it to Amscan.
(Pl.'s Cross Mot. Summ J. Ex. 6, DN 25-7 [hereinafter
FMLA Certification II]). Amscan did not provide Ashby with
any information regarding her FMLA Certification, including
notice of the number of FMLA days that she had used at that
point. (Ashby Dep. 55:14-22). The Certification required a
follow-up in four weeks, on April 13, 2015, to determine
Ashby's readiness to return to work. (FMLA Certification
II). After four weeks, Ashby's doctor determined that
Ashby needed to stay off her ankle for two more weeks for the
injury to heal completely, so Ashby requested and Amscan
granted two additional weeks off. (Ashby Dep. 38:22-39:2,
39:24-40:1; Def.'s Mot. Summ. J. Ex. 6, DN 20-6
[hereinafter Return to Work Note]). After the two weeks,
Ashby was given full release to return to work with no
restrictions. (Return to Work Note).
Ashby returned to work immediately upon release by her doctor
on April 29, 2015, she was informed by two Human Resources
employees that she was terminated for taking more FMLA time
off than was allowed. (Termination Letter; Ashby Dep.
43:9-21). Amscan's FMLA policy allows an employee to take
up to “twelve workweeks of leave during a rolling
twelve month period”,  and Ashby had exceeded the
allotted twelve weeks of leave by four days. (Def.'s Mot.
Summ. J. Ex. 3, at 1, DN 25-5; Def.'s Mot. Summ. J. Ex.
4, DN 20-4 [hereinafter FMLA Calculations]). At no time
during her 2015 FMLA leave did Amscan notify Ashby how much
available FMLA leave she had or advise her that the final two
weeks off from work would exceed her FMLA leave. Amscan did,
however, provide Ashby with an “absenteeism
count” identifying the number of hours of FMLA leave
Ashby had used in the prior year on February 20, 2015, before
her leave request for the broken ankle. (Ashby Dep. 55:14-22;
Pl.'s Cross Mot. Summ. J. Ex. 5, DN 25-6 [hereinafter
FMLA Absenteeism Count]).
filed this action in Jefferson Circuit Court against Amscan
alleging that Amscan discriminated against her on the basis
of her disability (her broken ankle), and that Amscan failed
to accommodate her disability in violation of the Kentucky
Civil Rights Act (“KCRA”), KRS Chapter 344.
(Notice of Removal Ex. 2, ¶¶ 20-26, DN 1-2
([hereinafter Compl.]). In addition, Ashby asserted FMLA
interference and retaliation claims. (Compl. ¶¶
27-37). Amscan removed the action to this Court on July 29,
2015. (Notice of Removal, DN 1). Subsequently, Amscan moved
for summary judgment of all claims, and Ashby also moved for
summary judgment. (Def.'s Mot. Summ. J., DN 20; Pl.'s
Cross Mot. Summ. J., DN 25). This matter is now ripe for
Court has “original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56, “[t]he court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). There is no genuine issue of material fact when
“looking to the record as a whole, a reasonable mind
could come to only one conclusion . . . .” Mickler
v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184,
186 (6th Cir. 1993) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986)). “When moving for
summary judgment the movant has the initial burden of showing
the absence of a genuine dispute as to a material
fact.” Automated Sols. Corp. v. Paragon Data Sys.,
Inc., 756 F.3d 504, 520 (6th Cir. 2014) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
“The burden then shifts to the nonmovant, who must put
forth enough evidence to show that there exists ‘a
genuine issue for trial.'” Id. (citing
Horton v. Potter, 369 F.3d 906, 909 (6th Cir.
the Court views the evidence in the light most favorable to
the non-moving party, the non-moving party must do more than
merely show the existence of some “metaphysical doubt
as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(citations omitted). Rather, the non-moving party must
present specific facts proving that a genuine factual issue
exists by “citing to particular parts of the 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 mere
existence of a scintilla of evidence in support of the [non-
moving party's] position will be insufficient; there must
be evidence on which the jury could reasonably find for the
[non-moving party].” Anderson, 477 U.S. at
asserts two separate claims under the KCRA. She alleges that
Amscan discriminated against her because of her disability
and that Amscan failed to reasonably accommodate her
disability-discrimination claims are brought under the KCRA.
Because the KCRA mirrors the language of the ADA, courts
interpret the KCRA consistent with the ADA. See Howard
Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003);
Brohm v. JH Props., Inc., 149 F.3d 517, 520 (6th
Cir. 1998). “The KCRA makes it unlawful for an employer
to discriminate against an otherwise qualified individual on
the basis of a disability.” Laferty, 186
F.Supp.3d at 708 (citing KRS 344.040(1)(a)). To state a prima
facie case, the plaintiff must first “show that [she]
is disabled . . . .” Id. (citing Noel v.
Elk Brand Mfg. Co., 53 S.W.3d 95, 101 (Ky. App. 2000)).
A person is “disabled” if she suffers “a
physical or mental impairment that substantially limits one
or more of the major life activities of such individual . . .
.” Hedrick v. W. Reserve Care Sys., 355 F.3d
444, 452 n.5 (6th Cir. 2004) (quoting 42 U.S.C. §
12102(2)); see also Hallahan v. Courier-Journal, 138
S.W.3d 699, 707 (Ky. App. 2004). The non-exhaustive list of
“major life activities” includes “walking,
” “standing, ” and “working.”
42 U.S.C. § 12102(2)(A). Ashby claims that she is
disabled due to the fractures in her right foot and ankle.
For Ashby to survive summary judgment, she must show that her
physical impairment substantially limited her major life
determining whether an individual is substantially limited in
a major life activity, courts are to consider: “(i) the
nature and severity of the impairment, (ii) the duration or
expected duration of the impairment; and (iii) the permanent
or long term impact, or the expected permanent or long term
impact of or resulting from the impairment.” EEOC
v. Chevron Phillips Chem. Co., LP, 570 F.3d
606, 615 (5th Cir. 2009) (citing 29 C.F.R. § 1630.2(j)).
First, neither the nature nor severity of Ashby's
fracture suggests that she is disabled. Ashby's fractured
foot appears to have been an ordinary break. The injury
healed normally and she was cleared to go back to work within
eight weeks of the injury, at which time Ashby's doctor
cleared her to go back to work without restrictions. Ashby
currently has no medical restrictions from walking, standing,
or working; thus, the fractures were merely a temporary
injury. See 29 C.F.R. app. § 1630.2(j) (2003).
(“[T]emporary, non-chronic impairments of short
duration, with little or no long term or permanent impact,
are usually not disabilities.”). Because there was no
permanent or long-term impact resulting from the fractures,
Ashby's broken foot does not qualify as a disability.
fractured foot and ankle was not a physical impairment that
substantially limited one or more major life activities, and
Ashby has failed to establish that she had a
“disability” under the ADA. A plethora of case
law establishes that an ordinary broken bone will not amount
to an impairment that “substantially limits one or more
of the major life activities . . . .” Smith v.
Reg'l Plan Ass'n, No. 10 CIV. 5857 BSJ KNF, 2011
WL 4801522, at *5 (S.D.N.Y. Oct. 7, 2011) (citing 42 U.S.C.
§ 12102(1)); see also Clark v. Boyd Tunica,
Inc., No. 314-CV-00204-MPM-JMV, 2016 WL 853529, at *5
(N.D. Miss. Mar. 1, 2016) (holding that broken foot that
healed in the normal course did not qualify as a disability);
Kramer v. K & S Assocs., 942 F.Supp. 444, 446
(E.D. Mo. 1996) (stating that when the plaintiff's broken
leg “healed completely in six months with little or no
long term effects, ” the injury did not qualify as a
disability under the ADA); Ogborn v. United Food &
Commercial Workers Union, Local No. 881, 305 F.3d 763,
767 (7th Cir. 2002) (noting that “episodic impairments
such as broken limbs and appendicitis are not disabilities .
. . .” (citations omitted)); Budhun v. Reading
Hosp. & Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014)
(concluding that broken bone in hand was not a disability
under the ADA). Thus, Ashby has not demonstrated that she was
suffering from an actual disability as defined by the ADA.
the record contains no evidence indicating that Amscan
regarded Ashby as having a disability. Further, the
“regarded as” prong of the disability definition
does not apply to “transitory and minor”
impairments. 42 U.S.C. § 12102(3)(B). Under the ADA,
“[a] transitory impairment is an impairment with an
actual or expected duration of 6 months or less.”
Id. This definition precisely describes Ashby's
broken bones which healed in less than two months. Therefore,
Ashby's disability-discrimination claims fail as a matter
of law. Amscan's motion for summary judgment as to the
disability-discrimination claim under the KCRA is granted and
Ashby's motion as to this claim is denied.
Failure to ...