United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION & ORDER
B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Defendant Renal Care Group,
Inc's ("Renal Care") Motion for Summary Judgment.
[R. 20.] Plaintiff Shanna Ezell responded, [R. 24], and Renal
Care replied, [R. 28]. Fully briefed, this matter is now ripe
for adjudication. For the reasons stated herein, Renal
Care's Motion for Summary Judgment, [R. 20], is GRANTED
IN PART AND DENIED IN PART
23, 2013, Ezell started working for Renal Care as a clinical
certified hemodialysis technician at the Paducah dialysis
clinic. [R. 24-1 at 8-9 (Ezell Depo.).] Ezell worked under
the supervision of Brooklyn Nicks, the Clinical Manager.
[Id. at 16.] According to a Renal Care corrective
action form, Ezell was terminated from her position on
October 24, 2014 after prior warnings "regarding
attendance." [R. 24-11 at 1 (Termination Form).]
Care's attendance/tardiness policy states: "Regular
attendance and punctuality are essential for providing
efficient and quality patient care." [R. 24-3 at 1
(Attendance Policy).] Ezell received a copy of this policy on
May 28, 2013. [R. 24-1 at 16.] The policy applies to all
employees, and all employees "are subject to the
corrective action process for excessive occurrences of
absenteeism and/or tardiness." [R. 24-3 at 1.] An
"unscheduled/unexcused absence" is defined as
"[a] request that is not submitted within 48 hours . .
.." [Id.] Furthermore, "[a]
physician's note may be required for unscheduled absences
at the discretion of the Location Manager. This note does not
necessarily excuse the absence. A pattern of excessive
absences, with or without a physician's note, may result
in corrective action." [Id.] The policy defines
tardiness as occurring whenever employees "are not at
their work station at the scheduled start time of their
shift." [Id.] It requires that
"[e]mployees who are absent or tardy . . . notify their
supervisor . . . prior to the start of their scheduled
shift" with as much notice as possible. [Id.]
"An employee who fails to report for work and fails to
notify his/her supervisor on a scheduled day will be subject
to the corrective action process." [Id.]
policy implements a set of guidelines to determine when
corrective action is necessary: "The time frame used to
record unscheduled absences and tardiness will be for a 12
month period. This time period will be measured from the
current date back to the previous 12 months. . . .
Occurrences of absenteeism and tardiness will be added
together to determine the need for corrective action . .
.." [Id. at 2.] Under the policy, six to seven
absences/tardiness qualifies the employee for the standard of
"Needs Improvement, " and greater than seven
absences/tardiness qualifies the employee for the standard of
"Unsatisfactory." "An employee who has reached
the "Needs Improvement" level of absenteeism or
tardiness will be subject to the corrective action process. .
. . Depending on the nature and severity of the infraction,
steps in the corrective action process may occur."
March 20, 2014, Ezell received "Documented Counseling,
" which is defined on the "Corrective Action
Form" as "a documented discussion to address the
required need for improvement prior to initiating further
corrective action." [R. 24-4 at 1 (Doc. Counseling
Form).] According to the corrective action form, this was due
to "Numerous tardies ranging up to 2 hours late as well
as several unscheduled absences, (7/15, 7/16, 9/12, 9/13,
11/11, 12/13)." [Id.] In her deposition, Ezell
testified that she was absent July 15-16, 2013 due to being
sick with the flu and September 12-13, 2013 due to strep
throat and a sinus infection. [R. 24-1 at 24-25]. Ezell
testified that she was sick on December 12, and she received
a doctor's note excusing her from work for the next four
days. [Id.] She testified further that she called
Nicks that day to inform her that she could not work the
following four days. [Id.] Ezell provided a doctor
excuse note for her absences on September 12 and 13, [R.
24-19 at 2 (Medical Excuse)], as well as the doctor note that
excused her from work for four days in December,
[Id. at 3], On May 20, 2014, Ezell received a
"Written Warning, " which is "a documented
warning to address expectations and need for immediate
improvement." [R. 24-5 at 1 (Written Warning).] The
corrective action form's "description of
situation" reads: "5/1/14 staff 20 minutes late,
5/13/14 staff member called in, 5/16/14 staff only worked
0546-0710, went home sick but did not notify Clinic Manager
until 5/19/14." [Id.] Ezell disputed part of
this account in her deposition, testifying that she attempted
to contact Nicks on May 16, but she could not reach her, so
she left a voicemail. [R. 24-1 at 28-29.] Ezell did not
provide a doctor excuse note or medical documentation for any
of these instances.
14, 2014, Ezell received a "Final Written Warning,
" which is "a documented warning to address
expectation and need for immediate improvement following
previous warning(s) or immediately for more severe misconduct
or performance." [R. 24-6 at 1 (Final Written Warning).]
The corrective action form's "description of
situation" reads: "7/9/14 staff member called out
for shift at 0548. Shift was scheduled to begin at 0540.
Shanna stated that she did not have managers [sic] phone
number, No. is listed on staffing schedule. Shanna did not
call the clinic until 0545 to obtain manager's
number." In her deposition, Ezell testified that she
cannot remember why she was absent on July 9, but she
"called and called all morning long" and no one at
the clinic would answer the phone. [R. 24-1 at 32-33.] Ezell
did not provide a doctor excuse for this absence.
September 1, 2014, while at work, Ezell started to experience
abdominal pain. [Id. at 47-48.] According to
Ezell's deposition, her charge nurse walked her to the
emergency room at Lourdes Hospital to be seen by a doctor.
[Id.] She was admitted to the hospital for
"further evaluation, additional testing, monitoring, IV
therapy and antibiotics and pain control." [R. 21-11 at
5 (Lourdes Documentation).] On September 2, 2014, after
staying the night at the hospital, Ezell decided that she
needed to take FMLA leave because she "had been getting
sick and getting sick up to the point of being hospitalized
and [she] needed to take a rest and see some doctors."
[R. 24-1 at 51.] According to Ezell's deposition, she
called Nicks that day, and informed her that she was
hospitalized and explained her diagnosis. [Id. at
45.] Furthermore, Ezell testified:
And I told her that I felt that I needed to take FMLA because
I had been -1 kept getting sick up to the point of now being
hospitalized. And that my blood work was abnormal. And that I
had an unknown virus and I needed to take FMLA so I could get
my health together. I told her I had pre-appendicitis. I was
under observation for surgery.
[Id. at 45:3-9.] Ezell testified that Nicks told her
that she did not qualify for FMLA unless she had surgery.
[Id. at 57:1-4, 57:15-19.] Nicks denied this in her
deposition. [R 21-12 at 22:25- No. 23:2 (Nicks Depo.).]
Furthermore, Nicks testified that they did discuss FMLA;
however, she told Ezell what she tells all employees: "I
don't know what you qualify for because that is not a
decision made by me, you need to call the human resources
leave office to talk with them to obtain the paperwork from
them for the physician, and then they'll notify me if
you're approved." [Id. at 22:1-7.]
was discharged from the hospital on September 2, 2014, with
no medication to be taken at home and no restrictions on
activities. [R. 24-7 at ¶ 4.]The doctor noted that he
suspected the abdominal pain was related to constipation as
he saw "no other inflammatory changes to suggest
appendicitis." [Id. at 25.] Furthermore, he
stated that this was further supported by "a normal
white count,  lack of fever and normal vital
signs." [Id.] According to Nicks's
deposition, Ezell was not disciplined under the attendance
policy for these particular absences. [R. 21-12 at
September 8, 2014, Ezell was seen at the emergency room at
Massac Memorial Hospital for abdominal pain. [R. 24-8 at 1
(Massac Report).] Ezell was seen by a physician at 16:43,
[Id. at 1], and departed at 18:24, [Id. at
5]. Under "Departure, " the report from Massac
stated that Ezell's condition was "good" and
instructed Ezell to increase intake of fluids, take
"Levsin 0.125" for pain, and "recheck
PMD one week." [Id.] Ezell testified in her
deposition that on September 29, 2014, she was having heart
palpitations and a fever while working at different Renal
Care clinic in Metropolis, and her physician instructed her
over the phone to leave work and go to the emergency room.
[R. 24-1 at 35.] She further testified that she told the
clinical manager in Metropolis, Julie Roberts, that her
physician instructed her to go to the emergency room, but she
could not recall if she spoke to Nicks about the incident.
[Id. at 35-36.] On the sign-in sheet for the Baptist
health emergency room, Ezell listed many symptoms, including
"severe abdominal pain." [R. 24-9 at 1 (Baptist
Sign-In Sheet).] The doctor's clinical impression from
the visit also listed abdominal pain, and instructed Ezell to
follow up with her doctor because she needed testing that
could not be done in the emergency room. [R. 24-9 at 6-7
(Baptist Doctor Notes).] She left the emergency room at
Baptist Health without being admitted into the hospital.
[Id. at 28.]
testified in her deposition that on October 11, 2014 she
worked two hours of her shift, and her charge nurse sent her
home due to a fever, a bloody, irritated esophagus, and an
infection. [R. 24-1 at 40:2-6.] She testified further that
both her and the charge nurse attempted to contact Nicks but
received no response. [Id. at 40:9-12.]
October 13, 2014, Ezell was put on "Disciplinary
Suspension" due to her absence on September 29, 2014.
[R. 24-10 at 1 (Discip. Suspension).] "Disciplinary
Suspension" involves "unpaid time away from work
implemented after consultation with HR." [Id.]
According to the corrective action form, Ezell received this
corrective action because she told the staff that her doctor
instructed her to go to the emergency room, but she failed to
inform the clinical manager of the Metropolis clinic or the
clinical manager of her home clinic. [Id.] In her
deposition, Ezell testified that when Nicks told her she was
being suspended, she did not understand the reasoning for the
action because she had provided medical documentation for her
absences. [R. 24-1 at 36:23-37:2.] Furthermore, she testified
that she told Nicks that she felt she was being discriminated
due to her health issues, and Nicks was retaliating against
her because she complained about this discrimination.
[Id. at 37:4-7.]
October 24, 2014, Ezell was terminated. [R. 24-11 at 1.]
Termination is defined on the corrective action form as
"employment ended due to insufficient improvement
related to performance or behavior or as a result of
misconduct requiring immediate termination."
[Id.] The description of the situation on the form
states: "On 10/11/2014 staff member only worked 2 hours
of her shift, told staff that she was sick and needed to
leave. She attempted to contact CM one time, but did not wait
for a return call leaving the clinic before speaking to the
October 21, 2016, Ezell filed a complaint in Morgan Circuit
Court in Kentucky, alleging counts of disability
discrimination, FMLA interference, FMLA retaliation, and KCRA
retaliation. [R. 1-1 at 8-10.] On November 15, 2016, Renal
Care removed the case to federal court. [R. 1.] On November
28, 2016, Renal Care filed the Motion for Summary Judgment
that is currently before the Court. [R 20.]
judgment is appropriate when the record, viewed in the light
most favorable to the nonmoving party, reveals "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). A genuine dispute of material fact exists
where "there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). The Court "may not make
credibility determinations nor weigh the evidence when
determining whether an issue of fact remains for trial."
Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th
Cir. 2014) (citing Logan v. Denny's, Inc., 259
F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil,
188 F.3d 365, 369 (6th Cir. 1999)). "The ultimate
question is 'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.' " Back v. Nestlé USA, Inc.,
694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson,
477 U.S. at 251-52).
moving party must shoulder the burden of showing the absence
of a genuine dispute of material fact as to at least one
essential element of the nonmovant's claim or defense.
Fed.R.Civ.P. 56(c); see also Laster, 746 F.3d at 726
(citing Celotex, 477 U.S. at 324). Assuming the
moving party satisfies its burden of production, the
nonmovant "must-by deposition, answers to
interrogatories, affidavits, and admissions on file-show
specific facts that reveal a genuine issue for trial."
Laster, 746 F.3d at 726 (citing Celotex,
477 U.S. at 324). "[N]ot every issue of fact or
conflicting inference presents a genuine issue of material
fact." Street v. Bradford & Co., 886 F.2d
1472, 1477 (6th Cir. 1989). The test is "whether the
party bearing the burden of proof has presented a jury
question as to each element in the case." Hartsel v.
Keys, 87 F.3d 795, 799 (6th Cir. 1996). Nor will mere
speculation suffice to defeat a motion for summary judgment:
"[t]he mere existence of a colorable factual dispute
will not defeat a properly supported motion for summary
judgment. A genuine dispute between the parties on an issue
of material fact must exist to render summary judgment
inappropriate." Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
brings four different causes of action: interference under
the FMLA, retaliation under the FMLA, retaliation under the
KCRA, and disability discrimination under the KCRA. [R. 1-1
at 7-9.] Renal Care moves for the Court to grant summary
judgment on all four claims. [See R. 20-1.] The Court will
address each cause of action in turn.
The Family Medical Leave Act (FMLA)
FMLA entitles qualifying employees up to 12 work weeks of
leave under specified circumstances, including if they are
suffering from a serious health condition." Tennial
v. United Parcel Serv., Inc., 840 F.3d 292, 307 (6th
Cir. 2016) (citing 29 U.S.C. § 2612(a)(1)(D)). The Sixth
Circuit "has recognized two theories of recovery under
the FMLA: interference and retaliation." Id.
(citing Seeger v. Cincinnati Bell Tel. Co., LLC, 681
F.3d 274, 282 (6th Cir. 2012)). In this case, Ezell brings
claims under both theories.
FMLA makes it "unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to
exercise, any right provided" by the FMLA. 29 U.S.C.
§ 2615(a)(1). "[A]n employer violates the FMLA
under the 'interference' theory if it fails to
provide its employee with his FMLA entitlements or interferes
with an FMLA-created right, regardless of the employer's
intent." Casagrande v. OhioHealth Corp., 666
Fed.Appx. 491, 496 (6th Cir. 2016) (citing Arban v. W.
Publ'g Corp., 345 F.3d 390, 401 (6th Cir. 2003)).
may prove claims of FMLA interference using the McDonnell
Douglas burden-shifting framework. Demyanovich v. Cadon
Plating & Coatings,LLC,747 F.3d 419, 427
(6th Cir. 2014) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)). Under that framework,
"the employee has the initial burden of establishing his
prima facie case; if he does so, the burden shifts to the
employer to articulate a legitimate, non-discriminatory
reason for its actions; finally, the employee has the burden
of rebutting the ...