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Curty v. Norton Healthcare, Inc.

Court of Appeals of Kentucky

October 12, 2018



          BRIEF FOR APPELLANT: Kurt A. Scharfenberger Louisville, Kentucky

          BRIEF FOR APPELLEE: Donna King Perry Jeremy S. Rogers Alina Klimkina Louisville, Kentucky



          NICKELL, JUDGE:

         Ashley Curty appeals from Jefferson Circuit Court orders denying her motion to compel production of her medical records; granting summary judgment on two occasions in favor of her former employer Norton Healthcare, Inc. (Norton); and denying her motion to reconsider, alter, amend or vacate the award of summary judgment. After careful review, discerning no error, we affirm.

         Curty was employed by Norton as a medical assistant for less than a year. She knew Norton's attendance policy was based on a point system. Pursuant to the attendance policy, when employees are absent, tardy, or leave their shift early they are assessed points. Once an employee accrues ten points in a twelvemonth period, employment is terminated. Curty alleges on July 15, 2015, while working for Norton, she experienced a "stroke-like" episode and sought medical treatment in her employer's Emergency Room (ER) without notifying her supervisor. She claims an unidentified physician at the ER ordered her not to return to work for two days; however, those claims are not only unsupported, but contradicted by Curty's deposition, indicating she reported to work on both July 16 and 17, 2015. Also, on July 17, 2015, Curty's direct supervisor became aware Curty had accrued eleven and a half points under the attendance policy. Curty's employment was terminated for excessive absenteeism.

         Curty filed the instant suit on July 22, 2015, alleging claims of retaliation and unlawful discharge in violation of the Kentucky Civil Rights Act (KCRA), [1] disability discrimination, and Workers' Compensation Act retaliation.[2] Curty propounded written discovery to which Norton responded in September 2015. Curty's medical records were neither requested in her written discovery nor did Norton provide Curty's medical records as part of its responses.

         Following Curty's deposition, Norton moved for summary judgment on April 14, 2016, to which Curty responded. On July 27, 2016, Curty moved to stay the trial court's ruling pending completion of discovery, alleging summary judgment should not be granted until she obtained her medical records. Curty claimed Norton should have produced her medical records in its discovery responses, although she had not previously advised Norton or the trial court Norton's responses were deficient.

         On August 1, 2016, Curty emailed Norton she had computer records of her ER visit on July 15, 2015, and requested "any additional documents Norton has in its possession regarding the [sic] Ms. Curty's claims." Via email, on August 10, 2016, Curty generally requested "all documents that relate to the allegations in the complaint." On August 16, 2016, Curty moved to compel production of her medical records, specifically those relating to the July 15, 2015, incident. On August 22, 2016, Norton informed Curty how to obtain her medical records online, by phone, or by mail.

         On September 30, 2016, the trial court partially granted Norton's motion for summary judgment, dismissed Curty's retaliation claims and her claim of failure to accommodate her alleged disability, but declined to grant summary judgment on Curty's disability discrimination claim. On December 5, 2016, the trial court denied Curty's motion to compel as premature, determining she had not attempted to obtain her medical records through methods available to her under CR[3] 26.01. The trial court further noted Curty's medical records "are otherwise readily available to her."

         On April 27, 2017, nearly two years after Curty had filed suit, Norton again moved for summary judgment on the remaining claims. The trial court granted summary judgment on the renewed motion finding the record compelled the conclusion Curty is not "disabled" as defined under the KCRA and there is no evidence Norton's decision makers perceived Curty as disabled. Curty moved to reconsider, alter, amend, or vacate the trial court's grant of summary judgment but was denied. This appeal followed.

         As an initial matter, in contravention of CR 76.12(4)(c)(v), Curty does not adequately state how she preserved any of her arguments in the trial court.

CR 76.12(4)(c)[(v)] in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest ...

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