United States District Court, W.D. Kentucky, Louisville
CHARLES R. SIMPSON III, SENIOR JUDGE UNITED STATES.
case is before the court on defendant Kindred Nursing and
Rehabilitation - Bashford's (hereinafter
“Kindred”) motion for summary judgment. ECF No.
35. Plaintiff Abraham Panyagor responded. ECF No. 43. Kindred
subsequently replied. ECF No. 44. For the reasons set forth
below, Kindred's motion will be granted.
case arises from Panyagor's termination from Kindred on
August 10, 2015. ECF No. 43-2, p. 1. Panyagor began working
at Kindred as a certified nursing assistant
(“CNA”) on June 2, 2014. ECF No. 35-3, p. 1. In
approximately March 2015, Panyagor began having difficulties
working with two of his colleagues, Serena James and Betris
Sohn. ECF No. 35-2, p. 8. Panyagor alleges that after he
received recognition as ‘Employee of the Month, '
James and Sohn began to bully him. Id. He claims
that on at least one occasion, James used racial epithets
when speaking to him, referring to him as a “Black
African” and stating that she was going to “send
[him] back to Africa.” Id. Panyagor claims
that he reported this incident to Kindred's Executive
Director of Nursing, Adam Mather. Id. at 12.
According to Panyagor, Mather resolved the issue by
reassigning Panyagor and James to different units.
Id. at 19. Mather disputes this, stating that
Panyagor never complained of racial discrimination or
harassment, and that his reason for separating the two
employees was that both stated that they were having
difficulties working together. ECF No. 35-4, p. 2.
also alleges that he witnessed James abuse a patient when
they were working together. ECF No. 35-2, p. 6. He states
that he also reported this incident to Mather, and that James
was suspended from her job for two days as a result.
Id. at 26. Again, Mather disputes this
14, 2015, James called Kindred's employee hotline and
complained that Panyagor was sexually harassing her. ECF No.
43-2, p. 1. She stated that “Panyagor, [a CNA], [was]
creating an uncomfortable work environment for her . . . [by]
making sexual comments toward her during work hours . . .
[and] mak[ing] degrading comments towards the female
[CNAs].” Id. On June 18, 2015, Kindred's
Director of Nursing, Bobbie Shanks, was informed of
James' complaint. ECF No. 43-2, p. 1. The following day,
Shanks sent an email to Kindred's District Director of
Human Resources, Stacey Baker, and Mather regarding
James' complaint. ECF No. 35-9, p. 7. This email stated
that she had attempted to contact Panyagor, but he was not at
work that day. Id. It further stated that she would
attempt to contact him again the following Monday.
employee records show that Panyagor took paid time off from
June 15, 2015 to June 20, 2015. ECF No. 43-3, p. 1. Then, on
July 2, 2015, Panyagor submitted a disability certificate
from his doctor stating that he needed an additional
twenty-eight days off work to undergo physical therapy for a
back injury. ECF No. 35-10, p. 1. According to Panyagor,
Kindred gave him this time off work without issue. ECF No.
35-2, p. 13.
27, 2015, Baker realized that Panyagor was not listed in the
company's system as taking a leave of absence, although
he had been off work for several weeks. ECF No. 35-9, p. 9.
She emailed Mather and Shanks about this issue, and also
inquired as to whether Shanks had followed up with Panyagor
regarding the sexual harassment allegation. Id.
Shanks informed her that Panyagor was still off work and that
she had not yet interviewed him. Id. As the District
Director of Human Resources, Baker chose to resume the
investigation into the sexual harassment allegation herself.
Id. at 3.
spoke to several individuals during the course of her
investigation. Baker interviewed Sohn, who corroborated
James' allegation that Panyagor sexually harassed her.
ECF No. 35-9, p. 11. Sohn stated that on one occasion, she
witnessed Panyagor walk up to James and “st[and]
between her legs.” Id. Baker then interviewed
James, who confirmed her original allegation and acknowledged
the incident that Sohn had described. Id. at 12. She
also stated that another Kindred employee, Anne Baldwin, had
been sexually harassed by Panyagor. Id. Baker then
contacted Anne Baldwin, who stated that Panyagor was
“extremely flirtatious” with all women at
Kindred, and “had asked for her number and she told him
no.” Id. She stated that he then “found
her on Facebook and sent her a text.” Id. At
that point, “she deleted him off of Facebook and
blocked his number.” Id. Baker also
interviewed Panyagor while Panyagor was still off work.
Id. at 11. Panyagor denied James' sexual
harassment allegations, and stated that he had previously
reported James for patient abuse and that she and Sohn were
now ganging up on him. Id.
August 4, 2015, Panyagor returned to work. ECF No. 35-9, p.
5. Although he returned to his position as a CNA, he was
suspended that day pending the completion of the sexual
harassment investigation. Id. On August 6, 2015,
Baker spoke with Kindred's Divisional Vice President of
Human Resources, Jane Matthews, about the interviews she had
conducted. Id. Baker recommended to Matthews that
Panyagor be terminated, and Matthews agreed. Id.
Then, on August 10, 2015, Baker met with Mather. Id.
Mather reviewed Baker's investigation notes, and
ultimately agreed with her that Panyagor should be
terminated. Id. Mather and Baker met with Panyagor
that day and terminated him on the basis of sexual
harassment. Id.; ECF No. 43-2, p. 1.
2, 2016, Panyagor filed suit against Kindred, alleging
discrimination in violation of the Americans with
Disabilities Act (“ADA”), Title VII of the Civil
Rights Act of 1964 (“Title VII”), and the
Kentucky Civil Rights Act (“KCRA”), retaliation
in violation of Title VII, the KCRA, and the Family and
Medical Leave Act (FMLA), and FMLA interference. ECF No. 1.
According to Panyagor, Kindred terminated him for reporting
discrimination, or alternatively, for taking FMLA leave.
Kindred now moves for summary judgment.
trial court shall grant summary judgment in a case “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). The party moving
for summary judgment bears the initial burden of
“demonstrating that [there is] no genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the
moving party satisfies this burden, the burden then shifts to
the nonmoving party to “point to evidence demonstrating
that there is a genuine issue of material fact for
trial.” Id. at 323 (emphasis added).
considering a motion for summary judgment, the court must
consider the facts in the light most favorable to the
nonmoving party. Scott v. Harris, 550 U.S. 372, 378,
127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). However, the
nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). There must actually be “evidence on which the
jury could reasonably find for the [nonmoving] party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
asserts that it is entitled to summary judgment on all of
Panyagor's claims. Panyagor concedes that his claims for
discrimination under the ADA, Title VII, and the KCRA fail as
a matter of law. However, he maintains that his claims for
retaliation under Title VII, the KCRA, and the FMLA, and his
claim for interference under the FMLA must survive summary
judgment because they contain issues of material fact. These
arguments will be considered in further detail below.
Claims for Retaliation Under Title VII and the KCRA
argues that Panyagor's claims for retaliation under Title
VII and the KCRA fail as a matter of law. Kindred claims that
Panyagor fails to establish a prima facie case of
retaliation, and alternatively, that he fails to demonstrate
that the reason given for his termination was pretext.
Panyagor, by contrast, argues that he has established a prima
facie case for retaliation and ...