FROM JEFFERSON CIRCUIT COURT HONORABLE A.C. MCKAY CHAUVIN,
JUDGE ACTION NO. 14-CI-005548
AND ORAL ARGUMENT FOR APPELLANT: Kurt A. Scharfenberger
AND ORAL ARGUMENT FOR APPELLEES: Donna King Perry Vanessa N.
Rogers Louisville, Kentucky
BEFORE: JONES, D. LAMBERT, AND TAYLOR, JUDGES.
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,
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. 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
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
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.
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.
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. 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.
Standard of Review
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 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.
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."
Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492
(Ky. 2005), the Supreme Court of Kentucky noted that there
are two ...