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Larison v. Home of Innocents

Court of Appeals of Kentucky

May 11, 2018



          BRIEF AND ORAL ARGUMENT FOR APPELLANT: Kurt A. Scharfenberger Louisville, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEES: Donna King Perry Vanessa N. Rogers Louisville, Kentucky



          JONES, JUDGE:

         Appellant, Khristina Larison, brings this appeal challenging the Jefferson Circuit Court's order granting summary judgment to the Appellee, Home of the Innocents, her former employer. Following a careful review of the record and applicable law, we affirm.

         I. Background

         The Home of the Innocents ("HOTI") employed Khristina Larison ("Ms. Larison") as a Certified Nursing Assistant beginning March 26, 2012. On August 5, 2014, Ms. Larison suffered a severe stroke that rendered her fully incapacitated for over four months and unable to fully speak for nearly a year after her separation from HOTI. In response, Ms. Larison's husband, Charles Larison ("Mr. Larison"), contacted HOTI and requested paperwork under the Family Medical Leave Act ("FMLA") on her behalf.[1] HOTI employee Karen Bender ("Ms. Bender") forwarded the FMLA paperwork to Mr. Larison on August 11, 2014. Two days later, on August 13, 2014, Mr. Larison emailed Ms. Bender requesting "discharge papers for resignation under medical[.]"

Hey Karen if you would just send me the discharge papers for resignation under medical and they will be sent back by tomorrow. Things aren't going good because from one day to another it is all different!! I need to find a therapist that is here but there aren't any from what I gather. I'm going to continue looking!! Thank you for helping and I'm sorry for the inconvenience!! Charles K. Larison Jr.

Ms. Bender responded that no paperwork was necessary and that she would process the "Separation due to Medical Reasons[.]"


I'm sorry to hear that things aren't going smoothly. As far as the Separation due to Medical Reasons, there is really not any paperwork that I would need to send you… I just need to complete the paperwork and send it upstairs. However, if you could e-mail me the request to be separated due to Khristina's current medical condition, then I could attach that to the paperwork and they would know the circumstances. Obviously, she would be marked eligible for rehire at the time she improves to the point that the doctor would release her, in writing, to do her job without restrictions. Thanks for keeping me informed. Please tell Kristina that we are thinking of her. Karen

         On August 22, 2014, Mr. Larison submitted the completed FMLA paperwork to Ms. Bender.

Hey I got the paper work filled out. The doctor said she is improving but it will be a slow process. So he does want her on FMLA and I will attach the documents that you need. Sorry it was so late I had to wait until the doctor could fill them out! Thanks again!!! Charles K. Larison Jr.

         Even though Mr. Larison never sent a follow-up email requesting resignation, as requested by Ms. Bender, HOTI processed the resignation as having been requested by Ms. Larison on August 13, 2014. As such, by the time HOTI received the FMLA request papers, Ms. Larison's employment with HOTI had already been terminated. Ms. Larison alleges that this termination caused her to suffer financial ruin and emotional distress.

         On October 27, 2014, Ms. Larison filed a civil complaint against HOTI in Jefferson Circuit Court. Ms. Larison alleged three state law claims against HOTI in her complaint: discriminatory and unlawful discharge on the basis of a disability or a perceived disability in violation of Kentucky Revised Statutes (KRS), Chapter 344.010 et. seq. (hereinafter KRS 344); failure to accommodate under KRS 344; and retaliation and unlawful discharge in violation of KRS 344.280.[2] After a discovery period, HOTI moved for summary judgment on all claims. The trial court granted HOTI's motion after finding that there were no genuine issues of material fact which would make it possible for Ms. Larison to prevail at trial. This appeal followed.

         II. Standard of Review

         "The circuit court's decision to grant summary judgment is reviewed de novo." Harstad v. Whiteman, 338 S.W.3d 804, 809 (Ky. App. 2011) (citing Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001)). "In reviewing a trial court's grant of a motion for summary judgment, we must ascertain 'whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.'" Henninger v. Brewster, 357 S.W.3d 920, 924 (Ky. App. 2012) (quoting Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR[3] 56.03). "All doubts are to be resolved in favor of the party opposing the motion [for summary judgment]." City of Florence v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). "The party opposing a properly presented summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing the existence of a genuine issue of material fact for trial." Id.

         III. Analysis

         A. Disability Discrimination

         KRS 344.040(1)(a) makes it "an unlawful practice for an employer: To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, . . . because the person is a qualified individual with a disability."[4]

         In Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492 (Ky. 2005), the Supreme Court of Kentucky noted that there are two ...

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