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Adkins v. Kroger Limited Partnership I

United States District Court, E.D. Kentucky, Central Division, Lexington

December 17, 2018

ANTHONY ADKINS, Plaintiff,
v.
KROGER LIMITED PARTNERSHIP I, Defendant.

          MEMORANDUM OPINION AND ORDER

          DANNY C. REEVES UNITED STATES DISTRICT JUDGE.

         The Court previously held that Plaintiff Anthony Adkins did not state a claim for failure to provide a reasonable accommodation and to participate in an interactive process. [Record No. 28');">28');">28');">28] Adkins subsequently filed a motion under Federal Rule of Civil Procedure 60(b)(2), asking the Court to reconsider this determination. [Record No. 34] In support, Adkins asserts he is entitled to relief in light of newly discovered evidence. [Record No. 34]

         Adkins's motion will be denied because the evidence is not newly discovered, but even if it were, the Court's prior decision would not change.

         I.

         Adkins is a former employee of Kroger Limited Partnership I (“Kroger”). He commenced a medical leave of absence on September 26, 2013. [Record No. 22-2] Adkins asserted he suffered from back and shoulder impairments that interfered with his ability to work. [Record No. 1');">21, p. 2');">p. 2] Kroger's leave of absence policy is included in a collective bargaining agreement (“CBA”) negotiated with its employees' union. [Record No. 22-1] The policy states that:

[a] leave of absence because of sickness or non-work related injury, not to exceed ninety (90) days, shall be granted to an employee upon written request, supported by medical evidence. Extensions shall be granted up to ninety (90) days at a time, if requested in writing and supported by proper medical evidence prior to each expiration, but in no case shall the leave exceed two (2) years in duration.

[Record No. 22-1, p. 1');">21]

         Adkins's leave of absence was extended beyond the two-year limit contained in the CBA until December 30, 2015. [See Record No. 1');">21.] Kroger mailed Adkins a letter on December 23, 2015, stating that “[i]n accordance with your union contract, absences from employment due to sickness or injury shall not exceed two (2) years in length. Therefore, effective December 30, 2015 your employment with the Kroger Co will be terminated.” [See Record No. 1');">21, p. 2.] Adkins received the letter on December 28');">28');">28');">28, 2015. [Record No. 1');">21 p. 3');">1');">21 p. 3]

         Adkins provided a note from his doctor to Kroger clearing him to work one day a week on December 29, 2015. [Record No. 1');">21, p. 3] Store manager John Mosley was given his medical certification on December 29, 2015; however, he told Adkins there was “nothing he could do for him.” [Record No. 1');">21, p. 3] Adkins also spoke to a co-manager who indicated that there was a pricing job available. [Record No. 1');">21, p. 3] Adkins told Mosley about the position and Mosley responded that he would contact the human resources department and let Adkins know of its response. [Record No. 1');">21, p. 3] Adkins obtained a note from his doctor on December 30, 2015, clearing him to perform the pricing job. [Record No. 1');">21, p. 4] He subsequently gave the note to Kroger's personnel manager. [Record No. 1');">21, p. 4] However, in accordance with the letter of December 23, 2015, Adkins' employment with Kroger was terminated that same day. [Record No. 1');">21, p. 4]

         Adkins filed suit on January 19, 2018. Thereafter, Kroger removed the lawsuit to this Court. [Record No. 1] Adkins subsequently filed a verified amended complaint alleging that Kroger: (i) unlawfully discriminated against him based on his disability; (ii) failed to provide him with a reasonable accommodation or engage in an interactive process with him; (iii) is estopped from arguing that he was not otherwise qualified to return to work in the pricing job; and (iv) caused him to incur attorney's fees and costs. [Record No. 1');">21]

         Kroger filed a motion for judgment on the pleadings and this Court granted, in part, and denied, in part, the defendant's motion on June 11, 2018. [Record No. 28');">28');">28');">28] The Court dismissed Adkins's claims for failure to provide a reasonable accommodation and to engage in an interactive process, equitable estoppel, and attorney's fees. [Record No. 28');">28');">28');">28, p. 11] The undersigned concluded that Adkins claim for failure to provide a reasonable accommodation and to engage in an interactive process was not a plausible claim for relief because the alleged request for a reasonable accommodation was made after the two-year limit contained in the CBA. [Record No. 28');">28');">28');">28, p. 8]

         Adkins has now filed a motion for reconsideration under Federal Rule of Civil Procedure 60(b) based on a claim of newly discovered evidence. [Record No. 34] He requests that this Court grant him relief from its judgment dismissing his reasonable accommodation claim. [Record No. 34-1] The alleged newly discovered evidence includes deposition testimony of the defendant and a return to work document which was faxed to Kroger prior to his termination. [Record No. 34]

         II.

         a. The Plaintiff's Request For Relief Is Inappropriate Under Rule 60(b) of ...


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