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Ashby v. Amscan Inc.

United States District Court, W.D. Kentucky, Louisville Division

March 8, 2017

WINONA ASHBY PLAINTIFF
v.
AMSCAN, INC d/b/a/ DECO PAPER PRODUCTS DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, Judge.

         This 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.

         I. BACKGROUND

         Plaintiff 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.

         Ashby 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).

         Ashby's 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).

         When 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”, [1] 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]).

         Ashby 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 adjudication.

         II. JURISDICTION

         This Court has “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

         III. STANDARD OF REVIEW

         Under 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. 2004)).

         While 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 252.

         IV. DISCUSSION

         A. KCRA Claims

         Plaintiff 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.

         1. Disability-Discrimination Claims

         Ashby's 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.[2] 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 activities.

         In 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.

         Ashby's 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.

         Moreover, 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.

         2. Failure to ...


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