United States District Court, W.D. Kentucky, Louisville
CHARLES R. SIMPSON III, SENIOR JUDGE UNITED STATES DISRTICT
matter is before the Court on the motion of Defendant the
Jefferson County Board of Education (JCBE) for summary
judgment under Federal Rule of Civil Procedure 56(a), ECF No.
43. Plaintiff Avadawn Hargett responded, ECF No. 43. JCBE
replied, ECF No. 44. For the reasons discussed below, the
Court will grant JCBE's motion for summary judgment.
Hargett's Employment at Audubon Traditional
began her employment with the Jefferson County Public Schools
(JCPS) in August 1987. Hargett Dep. 3, ECF No. 40-2. In 2007,
Hargett began teaching third grade at Audubon Traditional
Elementary School (“Audubon”). Id.;
Notification of Change 2, ECF No. 40-6. In May of 2013,
Hargett requested a leave of absence under the Family Medical
Leave Act (FMLA), which was granted. Notification of Change
2, ECF No. 40-7; Designation Notice FMLA, 2, ECF No. 40-8.
Hargett and Audubon intended that her FMLA leave of absence
would end in August 2013. Notification of Change 2, ECF No.
planned return date, however, was extended until September
2013 because she was scheduled to undergo knee surgery.
Notification of Change 2, ECF No. 40-9; Hargett Dep. 6, ECF
No. 40-2. Hargett later provided JCBE a series of four
doctor's notes from Dr. Joseph F. Catalano that extended
the date on which Hargett was scheduled to return to teaching
at Audubon. The first doctor's note was dated August 6,
2013. 8/6/13 Return to Work Note 2, ECF No. 40-10. This note
stated, “Avadawn T Hargett will undergo knee surgery on
8-9-13. She will be off work from 8-9-13 until tentatively
9-16-13.” Id. The second doctor's note
from Dr. Catalano was dated August 23, 2013. 8/23/13 Return
to Work Note 2, ECF No. 40-11. The note asserted that Hargett
was to “remain off work until her next appointment on
September 27th” and that she would be
“reevaluated then.” Id. The third
doctor's note from Dr. Catalano was dated September 23,
2013. The noted affirmed, “It is my medical opinion
that Avadawn T Hargett is to remain off work from today to
10/6/2013 and may return to work on 10/7/2013. No prolonged
standing or walking. These restrictions are in effect for 4
weeks.” 9/23/13 Return to Work Note 2, ECF No. 40-12.
The fourth and final doctor's note was dated October 4,
2013. 10/4/13 Return to Work Note 2, ECF No. 40-13. The note
stated, “Avadawn T Hargett was seen in our office today
for evaluation. It is my medical opinion that Avadawn T
Hargett should remain out of work until 1/1/2014.”
all JCPS teachers, Hargett had building rights. Hargett Dep.
8, ECF No. 40-2. As described by Hargett, building rights are
a right to work in a particular building. Id. They
are not the right to teach a particular grade. Id.
Building rights derive from JCBE's collective bargaining
agreement with the Jefferson County's Teachers
Association (JCTA). JCBE-JCTA Agreement 2, ECF No. 40-14.
Under this agreement, “[t]he Employer will keep the
employee's assignment available upon resumption of
assigned duties provided: . . . The employee's planned
absence does not exceed ninety (90) days.” Id.
planned absence exceeded 90 days from the date when she began
her FMLA leave. See Notification of Change 2, ECF
No. 40-15 (asserting that Hargett's building rights
expired on November 20, 2013); 10/4/13 Return to Work Note 2,
ECF No. 40-13 Because Hargett's planned absence exceeded
90 days, Tiffany Marshall, the Audubon's principal, hired
a new teacher to take Hargett's third grade teaching
position. Notification of Change 2, ECF No. 40-16 (stating
“on medical leave per documentation until 01/06/2014.
Please contact HR for assignment upon return.”). The
new teacher began teaching the third grade class on October
19, 2013. Marshall Aff. ¶ 7, ECF No. 40-17.
attempted to return to work on November 6, 2013, after
Marshall had filled her third grade teaching position.
11/6/13 Email Exchange 2, ECF No. 40-20. Upon returning, she
provided a fifth doctor's note from Dr. Catalano. 11/4/13
Return to Work Note 2, ECF No. 40-19. Dr. Catalano asserted,
“It is my medical opinion that Avadawn T Hargett may
return to work on 11/6/2013 with the following restrictions:
No prolonged walking or standing. This work note suprecedes
[sic] any prior note listing return to work as January
thereafter, Marshall offered her a position teaching a first
grade class. Marshall Aff. ¶ 8, ECF No. 40-17. Hargett
rejected the offered position. Id. ¶ 9. In an
email written to the EEOC, Hargett explained that she had
rejected the offered position because Marshall would not
accept the following three “requested reasonable
accommodations/restrictions” that she had suggested:
(1) that she and her students walk with another class and
teacher to the lunchroom and to recess since she walked
slowly, (2) that a teacher assistant walk with Hargett and
her class to the computer lab and during bathroom times, and
(3) that a teacher assistant help her and check on her class
when they left the school building during a fire drill.
12/19/13 EEOC Email 2, ECF No. 40-24. Hargett testified that
she did not know if there were teachers' assistants
available to assist her with her class. Hargett Dep. 11, ECF
also testified that she would have preferred to teach fourth
grade, for which she says there was a position available.
Id. at 7-8. She specified, “[F]irst grade
required more physical demands. And [Marshall] could have put
the teacher she hired in the first grade, and coming up in
that January, she could have given me a fourth grade position
. . . So that was a vacancy in fourth and first, and she
wouldn't give me my third grade or fourth grade that
would fit my physical needs.” Id. Despite her
assertions that allowing her to teach fourth grade would have
been a reasonable accommodation, Hargett also recognized that
her building rights did not guarantee her the right to teach
a certain grade. Id. at 8.
also conceded that JCBE offered her a wheelchair to assist
her with transitioning to working with a first grade class.
Id. at 12. But Hargett did not consider the
wheelchair a reasonable accommodation because her
“doctor wanted [her] moving, not in a wheelchair”
and “I could move through [the classroom] with a
cane.” Id. She attested:
And the wheelchair is just trying to get through the hallways
with the students going in both directions and classes going
in both direction and classes going, when I could get through
with the cane and use that as an assistance. I had some
assistance, and that's what was available to the doctor,
because he knew my condition, and [JCBE] didn't.
also testified about taking her FMLA leave of absence. She
agreed that no one at the Jefferson County Public Schools had
suggested to her that she had improperly taken FMLA leave or
questioned that medical leave was necessary. Id. at
16. She also confirmed that no one had suggested to her that
the reason she could not be placed back into her old teaching
position was that she had inappropriately taken medical
leave. Id. Hargett also verified that she applied
and obtained disability benefits for the time that she had
missed for her knee surgery. Id. at 6.
Hargett's Employment at Kammerer Middle School
January 8, 2014, Bill Allison, a JCTA representative emailed
JCBE. 1/08/14 Email, ECF No. 40-25. He stated, “Ms.
Hargett is ready and available for placement at another
school. She will accept any class above the 3rd grade. She
would prefer high school rather than middle and as close as
possible to her home in Prospect.” Id. The
next day, JCBE emailed Hargett and several other people with
a job placement. 1/09/14 Email, ECF No. 40-26. The email
specified, “Avadawn Hargett will return from Leave on
Monday, January 13th. She will report to Kammerer Middle
School and teach 8th grade Social Studies.”
began working at Kammerer Middle School
(“Kammerer”) on January 13, 2014 under the
supervision of David Armour, the principal. Hargett Dep. 16,
ECF No. 40-2. She also worked with Carolyn Smith, the
assistant principal. Id. At Kammerer, Hargett asked
for a stool or chair that sat up high to accommodate her
health condition in the classroom. Id. at 17.
Hargett's request was granted. Id.
month after Hargett began teaching at Kammerer, she met with
Smith to review her job responsibilities. Smith Aff. ¶
4, ECF No. 40-27. Smith asked Hargett to participate in hall
monitoring between morning classes. Id.; Hargett
Dep. 17, ECF No. 40-2. Morning hallway monitoring duties
required Hargett to stand at an assigned location in the
hallway approximately 50 feet from her classroom for two to
three minutes while students walked from one classroom to
another. Smith Aff. ¶ 4, ECF No. 40-27. At the meeting,
Hargett did not mention to Smith any restrictions on her
ability to complete her morning hall monitoring duties.
Id. ¶ 5.
performed morning hallway monitoring duties for several
weeks. Hargett Dep. 18, ECF No. 40-2. Hargett, however,
believed her morning hallway monitoring duties would place
her knee at risk of re-injury because she was told to stand
in the middle of the hall with students “rushing”
from both directions. Id. at 17. Additionally, her
monitoring duties “caused more pain than [she] had had
before” and that she “wasn't able to
move.” Id. at 18.
and Hargett discussed ways to accommodate her knee injury
while she performed her morning hallway monitoring duties.
Id. Smith told Hargett that she could move around
the hallway, bring her stool into the hallway, or stand in an
alcove that was away from the hallway traffic. Id.;
see also Smith Aff. ¶ 7, ECF No. 40-27
(explaining accommodations that Smith offered Hargett).
April 7, 2014, Hargett submitted a doctor's note.
Id. ¶ 8. The note stated:
Avadawn T Hargett was seen in our office on 3/31/2014. She is
here for continued treatment regarding orthopedic condition
which started August 2013. She has undergone surgery, 4
months of physical therapy, along with rest. She still has
some impairments resulting in work restrictions of limited
walking and standing. After discussion of her job duties, it
is determined she is to avoid hall duty to reduce the risk of
re-injury to the knee.
3/31/14 Return to Work Note 2, ECF No. 40-28. In response,
Smith contacted Toni Kelman, a JCPS leave administrator,
about the doctor's note. Kelman Letter 2-3, ECF No.
40-29. Kelman advised Smith to send Hargett home until she
provided an updated note allowing her to fulfill her teaching
duties in their entirety. Id. at 2; Smith Aff.
¶ 9, ECF No. 40-27. Kelman then contacted Dr.
Catalano's office for more information. Kelman Letter
2-3, ECF No. 40-29. Dr. Catalano's assistant told Kelman
that Hargett could perform her morning hallway monitoring
duties if she were given a stool and allowed to sit at the
side of the hallway. Id. at 3.
remained off work for two days and returned to teaching at
Kammerer on April 14, 2014. Smith Aff. ¶ 10, ECF No.
40-27. Hargett was eventually paid for these days. Hargett
Dep. 19, ECF No. 40-2. Armour later agreed to change her
hallway monitoring schedule, and she participated in
afternoon hall monitoring for the remainder of the school
end of the school year, Armour asked Hargett why she was not
retiring. Id. Then, Smith told Hargett that if she
did not participate in morning hall monitoring duty or take
medical leave, she would not be eligible for health
Hargett's Disability Retirement
Hargett applied for disability retirement. Id. The
Kentucky Teachers' Retirement System (KTRS) received her
application. Applicant Statement of Disability 2, ECF No.
40-30. The application's fourth question asks, “Was
the work stoppage due to illness which renders you incapable
of carrying out your duties?” Id. Hargett
checked “yes” in response. Id. She
wrote, “Breathing difficulties got progressively worse
teaching in poor ...