United States District Court, W.D. Kentucky
JONATHAN C. BAUM PLAINTIFF
METRO RESTORATION SERVICES, Inc. DEFENDANT
Charles R. Simpson III, Senior Judge
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.
Metro Restoration and Baum's Work Schedule
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.
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.
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.
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.
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.
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.
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.
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.
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.
Events Leading Up to Baum's Termination
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
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.
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.
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.
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.”
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.
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.
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).
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 ...