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Reed v. Gulf Coast Enterprises

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

April 24, 2018

ROBERT RAY REED PLAINTIFF
v.
GULF COAST ENTERPRISES, et al. DEFENDANTS

          MEMORANDUM OPINION & ORDER

          Joseph H. McKinley, Jr., Chief Judge United States District Court

         This matter is before the Court on motions for summary judgment by defendants Gulf Coast Enterprises (“GCE”) (DN 63) and The Ginn Group, Inc. (“Ginn Group”). (DN 62.) Fully briefed, these matters are ripe for decision.

         I. Background

         This case arises out of plaintiff Robert Ray Reed's employment with GCE. According to the complaint, from November 2011 to November 2013, Reed, who is disabled, was employed by GCE. (Pl.'s Compl. [DN 1-2] ¶¶ 2-3, 17-18, 37.) Reed suffered an on-the-job injury to his ankle on November 12, 2013, and he has not worked since. (Id. ¶¶ 37, 45.) Throughout his employment, Reed alleges that he was denied accommodations that he requested, subjected to harassment, placed in dangerous working conditions, and ultimately terminated because of his disability. On March 16, 2015, Reed filed a complaint in state court against four defendants: GCE, who hired Reed; the Ginn Group, who employed Reed's supervisors; Source America, a nonprofit agency who subcontracted with GCE and the Ginn Group in administering the federal AbilityOne Program; and Gary Matthews, an employee of the Ginn Group and Reed's supervisor.[1] Reed asserted claims for (1) disability discrimination in violation of the Kentucky Civil Rights Act (“KCRA”), KRS § 344.040; (2) negligent hiring/retention/supervision; (3) promissory estoppel; (4) “failure to protect;” (5) civil conspiracy; (6) “civil conspiracy (retaliation)” in violation of KRS § 344.280; (7) “retaliation (EEOC)” in violation of KRS § 344.280; and (8) negligent infliction of emotional distress. (Id. ¶¶ 60-118.)

         On April 20, 2015, SourceAmerica, GCE, and the Ginn Group removed the case from state court to this Court. (DN 1.) SourceAmerica later moved for either judgment on the pleadings or summary judgment as to all claims asserted against it. (DN 9.) After ordering briefing on whether this Court possessed subject matter jurisdiction (DN 17), the Court determined that the parties were diverse so as to give this Court jurisdiction and granted SourceAmerica's motion as to all claims against it. (DN 20.) The Ginn Group later moved for summary judgment prior to the close of discovery. (DN 50.) The Court denied that motion but granted the Ginn Group leave to refile its motion at the close of discovery. (DN 56.) GCE and the Ginn Group have now filed motions for summary judgment, seeking dismissal of all the plaintiff's remaining claims. (DN 62, 63.)

         II. Standard of Review

         Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying the portion of the record that demonstrates the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies this burden, the non-moving party must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

         Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the non-moving party to show that a genuine factual issue exists by “citing to particular parts of 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.

         A. Count I - Disability Discrimination

         Both remaining defendants have moved for summary judgment as to Reed's claim for disability discrimination under the KCRA. Under KRS § 344.040, “[i]t is an unlawful practice for an employer: (1) to fail to or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual . . . because the person is a qualified individual with a disability.” KRS § 344.040(1)(a). Because the language of the KCRA mirrors that of federal anti-discrimination laws, courts interpret the Kentucky Act consistently therewith. See Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003).

         Reed's complaint and response to the motions for summary judgment assert two different theories of discrimination. He first argues that he was terminated because of his disability. Reed does not contest that this theory relies on indirect evidence of discrimination. “To make out a prima facie case of employment discrimination through indirect evidence . . . a plaintiff must show that 1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff's disability; and 5) the position remained open while the employer sought other applicants or the disabled individual was replaced.” Whitfield v. Tenn., 639 F.3d 253, 258-59 (6th Cir. 2011) (quotations omitted).

         GCE and the Ginn Group argue that Reed cannot make out a prima facie case, as no adverse employment action was taken against him.[2] “An adverse employment action is a materially adverse change in the terms or conditions of . . . employment because of [the] employer's conduct.” Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1107 (6th Cir. 2008) (quotations omitted). Reed points to his termination as evidence of adverse action taken against him. However, the defendants have submitted evidence showing that Reed was never terminated. The record shows that Reed suffered a work-related injury to his ankle while weed eating on November 12, 2013. (Dep. Robert Reed [DN 63-12] at 28:19-29:4.) He then filed for leave under the Family and Medical Leave Act beginning on November 13, 2013. (FMLA Documents [DN 63-13] at 1.) His medical records show that on December 11, 2013, he was directed by medical personnel not to return to work indefinitely due to the severity of his injury. (Id. at 5.) On July 2, 2014, Reed's wife notified GCE that Reed was now permitted to return to work, so long as he would be restricted to sedentary work until a brace may be made for him. (Emails [DN 63-15] at 1.) Bill VanCleave, the human resources manager at GCE, sought to find out from Mrs. Reed when the brace would be ready so that Reed could return to work. (Id.) Mrs. Reed responded that it would take a few weeks and stated that Reed “wasn't ‘released'” but remains “on very light duty.” (Id.)

         Reed disputes that this evidence shows that he remained an employee of GCE and contends that he was discharged on November 12, 2013. However, he only points to his own affidavit, submitted with his response to the motions for summary judgment, in support of this argument. In this affidavit, Reed states that he was told by VanCleave in 2014 to “not come into work anymore and to not call him, ” thus terminating his employment. (Reed Aff. [DN 67-1] ¶ 52.) However, this affidavit contradicts other evidence in the record showing that Reed was still employed by GCE beyond the date of his injury. For example, on July 21, 2014, Reed applied for worker's compensation for his work-related injury. (Worker's Compensation Application [DN 70-4] at 1-5.) In that application, Reed twice indicated that he was still employed by GCE. (Id. at 3, 4.) Further, when asked if anyone at GCE ever told him he was terminated or provided him documents indicating he was no longer employed, he said that neither had ever happened. (Dep. Reed [DN 63-5] at 186:13-19.) “[A] party should not be able to create a disputed issue of material fact where earlier testimony on that issue by the same party indicates that no such dispute exists.” Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 907 (6th Cir. 2006). Reed's affidavit makes no attempt to explain why the information in the worker's compensation application or his deposition is actually not true. Instead, it simply contradicts these prior statements. Therefore, the Court will not allow Reed to create a factual dispute as to whether he was terminated. The record establishes that Reed remained employed by GCE following his November 12, 2013 injury. As such, Reed cannot use his “termination” as evidence of an adverse employment action to prove his prima facie case, as he was never actually terminated.

         Reed also argues that he was denied requests for accommodations because of his disability.[3] Reed argues that he repeatedly requested accommodations, both before and after suffering his on-the-job injury in November 2013, but was routinely denied. The Sixth Circuit has noted that “an employer's failure to offer a reasonable accommodation necessarily involve[s] direct evidence (the failure to accommodate) of discrimination.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). A direct evidence claim “jettison[s] the familiar McDonnell Douglas burden-shifting framework applicable in indirect-evidence cases” and applies the following framework:

(1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The plaintiff bears the burden of establishing that he or she is “otherwise qualified” for the position despite his or her disability: (a) without accommodation from the employer; (b) with an alleged “essential” job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is ...

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