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Baum v. Metro Restoration Services, Inc.

United States District Court, W.D. Kentucky

March 9, 2017



          Charles R. Simpson III, Senior Judge

         I. Introduction

         This matter is before the Court on the motion of Defendant Metro Restoration Services (“Metro Restoration”) for summary judgment under Federal Rule of Civil Procedure 56(a), ECF No. 18. Plaintiff Jonathan C. Baum responded, ECF No. 23. Metro Restoration replied, ECF No. 24. For the reasons discussed below, the Court will grant in part and deny in part the motion for summary judgment.

         II. Background

         A. Metro Restoration and Baum's Work Schedule

         Metro Restoration is a restoration company that remediates property after severe weather events. Baum Dep. 53-54, ECF No. 23-1. In May 2013, Metro Restoration hired Baum as a scheduler. Id. at 38. As a scheduler, Baum's main responsibility was to schedule crews of workers to perform remediation work for Metro's customers. Id. at 40. Estimators called Baum or sent him text messages about work that needed to be done, and Baum used his personal cell phone or his office phone to dispatch the crews. Id. at 40; Cahill Dep. 19, ECF No. 23-2. Baum's direct supervisor was Patrick Cahill, Metro Restoration's owner and CEO. Cahill Dep. 33, ECF No. 23-2.

         Metro Restoration's normal hours of operations were between 7:30 A.M. and 4:30 P.M. Employee Handbook 14, ECF No. 18-5. The parties disagree when Baum was scheduled to work. According to Cahill, Baum's regularly scheduled office hours were from 8:00 A.M. to 5:00 P.M., Monday through Friday. Id. at 19. Ruby Neil, Metro Restoration's office manager, expected Baum to work between 7:30 A.M. and 4:00 P.M. Neil Dep. 19, ECF No. 23-3. Baum testified that when he started working for Metro Restoration, his hours were between 8:00 A.M. and 3:00 P.M. Baum Dep. 39, ECF No. 23-1. He says that after he had been working for about a month at Metro Restoration, his hours shifted to 7:00 A.M. to 3:00 P.M. Id. Baum occasionally worked on holidays and weekends, depending on when crews needed to be scheduled. Cahill Dep. 27, ECF No. 23-2.

         Baum says he was permitted to work from other locations outside of Metro Restoration's office, including his home. Baum Dep. 26-27, ECF No. 23-1. If Baum was going to be working away from the company office, he testified that he would call Cahill to let him know his whereabouts. Id. at 60. As a scheduler, he was expected to participate in site visits, inventory equipment, and deliver equipment to crews, all of which required him to be away from the office. Cahill Dep. 16-17, ECF No. 23-2.

         Cahill attested that Baum's capability to fulfill his duties as a scheduler was restricted when he worked at his home: at home, Baum could only make and receive phone calls regarding requests for work from Metro Restoration's customers. Id. at 27. In contrast, when he was in the company office, he could also lay out the crew members' schedules and place their paperwork in a central location. Baum Dep. 74, ECF No. 23-1.

         In 2014 and 2015, Baum began experiencing a number of personal events, which resulted in him missing work. For example, Baum and his wife separated in June of 2014 and were divorced in March of 2015. Id. at 12. Baum left the office on one occasion after his father-in-law arrived at his house with a truck to move out his wife. Id. at 81. He also missed work for child-care needs and to meet with his divorce attorney. Id. at 94-95. Additionally, Baum's dog needed to undergo a surgical procedure, and Baum asserts that he had to take the dog to the veterinarian during the hours in which he was scheduled to work. Id. at 96-97.

         In December 2014, Baum was diagnosed with an enlarged right ventricle in his heart and heart palpitations. Id. at 92; Medical R. 2, ECF No. 23-4. In February 2015, Baum's diagnosis was changed to additionally include an atrioventricular block, Mobitz type 1, Bradycardia, and chest pain. Medical R. 2, ECF No. 23-5.

         Baum did not request any accommodation for his heart condition while he worked for Metro Restoration. Baum Dep. 94, ECF No. 23-1. He also testified that his heart condition does not affect his ability to walk, perform manual tasks, care for himself, speak, breathe, learn, or work. Id. at 103-07. He also affirmed that his heart condition does not affect his vision or hearing. Id.

         Cahill had knowledge that Baum missed work on some occasions because of an unspecified heart procedure, various visits to the doctor's office, and the performance of a CAT scan on an unspecified location of his body. Cahill Dep. 30, ECF No. 23-2. On March 23, 2015, Baum sent Cahill a text message that stated, “Sorry, I had to get to E.R. My chest is fucking killing me. I might have had a mild heart attack last night, worst that its ever hurt. Woke me out of my sleep.” Id. at 31. When Cahill responded to this text message by asking Baum if he needed anything, Baum sent the following reply: “A functional heart, LOL. I'm at Jewish. E.K.G. looks Ok. I'm waiting for more T.R.S.T. They might do heart cath today. I'll keep you posted.” Id. at 31-32.

         Neil documented eighteen days between January and April 2015 when Baum failed to come into Metro Restoration's office or left early from the office. Cahill Dep., List of Dates 114, ECF No. 23-2. Neil listed the reasons for his absences as “left early due to ozone, ” “left 10:00, kid sick/dr, ” “left early- heart, ” “out- heart, ” “in late for lawyer, ” “snow day, ” “morning/cat scan, ” “afternoon/consultation, ” “dr, ” “worked from home, ” “heart procedure, “out/water could not get out of neighborhood, ” and “daughter teeth.” Id. Despite the number of days that Baum was not in Metro Restoration's office, Cahill never disciplined him for poor attendance. Cahill Dep. 22, ECF No. 23-2. Cahill says that Baum came to him on several occasions and explained that he would try to improve his attendance. Id. In contrast to his treatment of Baum, Cahill disciplined other employees for attendance reasons, including by giving them written and oral warnings, and by suspending and terminating them. Id. at 23-24.

         B. Events Leading Up to Baum's Termination

         On the weekend of Friday, April 3, 2015 through Sunday April 5, 2015, there were a number of weather-related, catastrophic events that created business for Metro Restoration. Baum Dep. 57, ECF No. 23-1. That Friday, however, Baum did not go to Metro Restoration's office because his children's school had been canceled due to the weather. Id. at 58.

         Also on Friday, April Scott, a coworker and friend of Baum's, was moving to a new apartment. Id. at 63-65. Cahill had given Scott permission to use a company vehicle to move, provided that Metro Restoration did not need the vehicle for business-related purposes. Cahill Dep. 41, ECF No. 23-2. Cahill testified that Baum called him on Friday morning and told him that Scott could not return the vehicle because her apartment complex's parking lot was flooded. Id. at 42. When Cahill ended his conversation with Baum, he checked the GPS on the company vehicle that Scott had borrowed and discovered that the van had been moved that morning to some distance from her apartment. Id. Cahill then called Baum back and told him that Metro Restoration needed the vehicle returned immediately. Id. Baum replied that the company vehicle was loaded with Scott's belongings and that she would need to unload the vehicle before returning it. Id. Cahill sent another employee to pick up the vehicle. Id. Upon arriving at the apartment complex, the employee found that the parking lot was not flooded, as Baum had mentioned in the original phone call to Cahill. Id.

         On Saturday, April 4, 2015, Baum also did not go to Metro Restoration's office. Baum Dep. 63-65, ECF No. 23-1. He instead helped Scott move to her new apartment. Id. He brought over a trailer to her house and sat in the truck while he dispatched crews for Metro Restoration on his cell phone. Id. at 63-64.

         C. Baum's Termination

         On April 8, 2015, Cahill went to Baum's house to tell him that he was terminated from his position as a scheduler. Id. at 84-85. According to Baum, Cahill told him that, because of Baum's “health issues and doctors' appointments and him not being able to sleep at night, it was just causing a huge turmoil, and he felt he needed to let [Baum] go immediately.” Id. at 86. Cahill also told Baum that he could hire him as an estimator but that it would require him to be on roofs. Id. at 87. As Baum is afraid of being on a roof, he felt like he could not accept the estimator position. Id. at 90-91.

         At an unemployment hearing on July 6, 2015, Cahill testified, “I told [Baum] it was clear to me that he was way too busy with his child care and health issues and doctor's appointments and everything but the job I hired him to do.” Cahill Dep. Ex. 4 122, ECF No. 23-2. He also stated, “We had discussed- I've got a whole bunch of dates that he had taken off, and [Baum] told me that he knew he wasn't at work enough, but he was getting some things lined out, and it was going to get better.” Id.

         In November 2015, Baum obtained a job at Nemeth Engineering, a metal shop, as an assembler. Baum Dep. 27, 29, ECF No. 23-1. As an assembler, Baum performed welding, fabrication, and layout for fabrication. Id. at 29. In February 2016, Baum left Nemeth Engineering and accepted a position with Ford Motor Company, a position that he still holds. Id. at 20. Baum works in Ford's engine department. Id. He uses a hoist to place a transfer case on the transmission, and then he tightens screws using an automatic gun. Id. at 21. When applying for his job at Ford, Baum wrote on his application that he never had experienced heart trouble. Ford Appl. 3, ECF No. 18-7.

         D. Procedural History

         Baum later sued Metro Restoration in the Jefferson County, Kentucky Circuit Court for violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., the Kentucky Civil Rights Act (KCRA), Ky. Rev. Stat. Ann. § 344.010, et seq., and the Kentucky Equal Opportunities Act (KEOA), Ky. Rev. Stat. Ann. § 207.130, et seq. Compl., ECF No. 1-3. Baum asserts that (1) he a qualified person with a disability because of his heart condition, which substantially limits him in the major life activities of lifting and working, as well as his circulatory and cardiovascular systems, and because he was “regarded as” a person with a disability, (2) Metro Restoration failed and refused to provide reasonable accommodations for his return to work despite his requests to do so, (3) his being a qualified person with a disability motivated Metro Restoration's decision to terminate him, and (4) these actions violated the ADA's and the KCRA's disability discrimination and retaliation provisions (Count I). Id. ¶¶ 22- 31. Baum also alleges that Metro Restoration terminated him because of his physical disability, which violated the anti-discrimination provisions of the KEOA (Count II). Id. ¶¶ 32-36. He seeks compensatory damages, punitive damages, liquidated damages, and equitable relief reinstating him to his former position as a scheduler. Id. at 5.

         In October of 2015, Metro Restoration filed an answer to Baum's suit in the state court. Answer, ECF No. 1-4. Metro Restoration then removed the case to this Court under 28 U.S.C. §§ 1331 and 1441. Not. Removal 1, ECF No.1. III. Discussion Metro Restoration now moves for summary judgment under Federal Rule of Civil Procedure 56(a). Mot. Summ. J. 1, ECF No. 18. Before granting a motion for summary judgment, a court must find 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). The party moving for summary judgment bears the initial burden of establishing the nonexistence of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party satisfies this burden by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). When resolving a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         Metro Restoration argues that the Court should grant summary judgment on Baum's claims because he does not meet the definitions of a person with a disability provided by the ADA, KCRA, and KEOA, and thus his claims fail as a matter of law. Mem. Supp. Mot. Summ. J. 1, ECF No. 18-1. Baum asserts in opposition that he is a person with a disability under the statutory definitions and that he is able to show that Metro Restoration discriminated against him in violation of the ADA, KCRA, and KEOA. Resp. Opp. Mot. Summ. J. 13-24, ECF No. 23. Because the parties' arguments focus ...

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