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Todd v. Covenant Security Services, Inc.

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

December 12, 2018




         This matter is before the Court on a motion by Defendant, Covenant Security Services, Inc., for summary judgment [DN 21]. Fully briefed, this matter is ripe for decision.


         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 that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (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 present specific facts showing 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. It is against this standard the Court reviews the following facts.


         Plaintiff, Kevin Todd, was employed by Defendant, Covenant Security Services, LTD (hereinafter “Covenant”), as a security officer from April 17, 2009 until October 6, 2015. Throughout his employment, Todd provided certain security services to Covenant's customer, Kimberly Clark, at its Owensboro, Kentucky facility. Todd was assigned to the second shift and his work hours were Thursday through Sunday from 3:00 p.m. to 11:00 p.m. Todd testified that his job was more like a clerk job, and his main responsibilities were to operate or man the over-the-road Truck Desk and the Shuttle Desk and paperwork related thereto. Todd received favorable employment evaluations from Covenant.

         Pursuant to the written job description for the security officer position at the Kimberly Clark facility in place at the time Todd was hired, the physical requirements of Todd's position included an ability “to walk several miles per day.” Covenant maintains that one of the key job duties of security officers at the Kimberly Clark plant on second and third shift was the performance of patrol rounds. Covenant represents that a patrol round refers to an officer's driving and/or walking around and throughout the Kimberly Clark facility, including the exterior and parking lots, to identify and report any security and/or safety hazards. Todd testified that security officers did patrol rounds early in his employment with Covenant, but the patrol rounds were not performed during the majority of his employment. Todd testified that he voluntarily performed patrol rounds during those years and was permitted to use his own vehicle or a Kimberly Clark vehicle during the exterior facility and parking lot rounds. In 2013, Plaintiff suffered a disabling impairment and notified Covenant that he had a physical issue related to his back and was unable to work more than 32 hours per week. Covenant adjusted his schedule.

         In January of 2015, an issue arose with Todd's delay in turning in bills of lading during his shift. On January 15, 2015, Todd informed his site supervisor, Lisa Adkisson, of his limitation regarding walking due to chronic pain. She verbally suggested that he take breaks. On February 26, 2015, Todd's immediate supervisor, Ryan Stanley, and the site supervisor, Adkisson, sent an email to the security officers, including Todd. The email read as follows:

Hello, everyone. There is a program that we are implementing now that should have been in place before the current management. It is called, S.A.F.E., and it stands for “Safety Awareness for Everyone”. To start, our patrol rounds per week are determined by both Covenant and KC. They will be changing to this schedule, effective immediately. Monday through Friday; 2nd shift will now be 2 rounds per shift and 3rd shift will be 4 rounds per shift. Saturday through Sunday; 1st shift will be 1 round per shift, 2nd shift will be 1 round per shift, and 3rd shift will be 2 rounds per shift. You must use both patrol sheets on your rounds! These sheets will be turned in and checked monthly by our account manager (Len Welham). If you have any questions feel free to ask. Thank you, Lisa and Ryan.

(Feb. 26, 2015, Stanley Email.)

         Based on this communication, on March 5, 2015, Todd sent an email to Adkisson requesting a reasonable accommodation be made “for the additional job responsibilities” of mandatory patrol rounds each shift. Specifically, Todd requested “some type of mobility device for [him] to make rounds inside the plant” and “an exception[] to allow [his] personal vehicle beyond the gate to deliver [bill of ladings] to RF.” (March 5, 2015, Todd Email.) On March 6, 2015, Adkisson responded to Todd that she had forwarded the email to Len Welham, Covenant Account Manager. (March 6, 2015, Adkisson email.) Covenant indicates that it made a temporary accommodation in response to Todd's request in March by temporarily excusing him from performing the duty of a patrol round during his shift. The record reflects that the Terry Bowden, the other security officer on second shift, voluntarily handled the walking patrols from March 5, 2015 to at least September of 2015. Covenant represents that Bowden decided that he no longer wished to perform all the walking patrols.

         In May of 2015, Todd's physician, Dr. Brian Chaney, completed the “Medical Inquiry for Reasonable Accommodation under the Americans with Disabilities Act (1990)” at Covenant's request which Todd submitted to Covenant. Dr. Chaney indicated that Todd suffered from a chronic low and thoracic back pain, that such condition is a permanent, long-term physical impairment which substantially limited Todd's ability to walk, but that he was able to work. In July of 2015, Covenant modified the written job description for security officers to include “[r]outine vehicle patrol of the facility parking lots, and exterior patrols of the facility” and “routine internal foot patrols of facility.” (July 16, 2015, Job Description.)

         Adkisson and Ashley Dennis, Human Resource Officer for Covenant, requested to meet with Todd on October 6, 2015. At that meeting, Todd again requested a reasonable accommodation to enable him to complete patrol rounds, including that (1) he would handle the heavier traffic volume desk and his co-worker would handle the lower traffic volume desk and the patrol rounds; (2) Covenant provide him with a mobility device; (3) Todd's supervisor, Ryan Stanley, perform the patrol rounds on the second shift as he volunteered to do; and (4) Todd be permitted to use his own vehicle or drive a Covenant vehicle to do the patrol rounds outside of the facility. Todd represents that Adkisson and Dennis denied the accommodations, advised Todd that he could not perform the job under the new requirements, and terminated Todd's employment with the company. Covenant represents that no reasonable accommodations were identified that would have allowed Todd to perform all of the essential functions of his security officer position as required by his shift assignment. Todd represents that he offered to stay until the employer hired someone to replace him, but he was informed that Covenant had already hired his replacement, a 22-year-old male.

         On September 1, 2017, Todd filed this current action against Covenant in the Daviess Circuit Court alleging claims of disability-based discrimination pursuant to the Americans with Disabilities Act and the Kentucky Civil Rights Act, age discrimination pursuant to the Age Discrimination in Employment Act, and retaliation. On September 27, 2017, Covenant removed the action from the Daviess Circuit Court to the Western District of Kentucky. Covenant now moves for summary judgment on the claims.

         III. ...

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