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Baum v. Metro Restoration Services, Inc.

United States District Court, W.D. Kentucky, Louisville

December 18, 2019



          Charles R. Simpson III, Senior Judge.

         I. Introduction

         This matter is before the Court on Defendant Metro Restoration Services, Inc.'s, (“Metro”) third motion for summary judgment. DN 56. Plaintiff Jonathan C. Baum (“Baum”) filed a response, DN 58, and Metro filed a reply, DN 59. The matter is now ripe for review. For the following reasons, Metro's motion for summary judgment will be DENIED.

         II. Facts and Procedural History

         This is an employment discrimination case. Metro repairs property damage caused by catastrophic events like storms, winds, and fires. DN 56-1 at 1. Baum worked at Metro as a scheduler. DN 58 at 3. His responsibilities consisted of calling, scheduling, and dispatching work crews to Metro's customers after catastrophic events. DN 56-1 at 1. Baum worked in this position from May 2013 to April 8, 2015. DN 58 at 3-4.

         Metro has certain attendance requirements for employees because of the unpredictable nature of their business. DN 56-1 at 2. Metro requires employees to work outside of normal working hours because of severe weather or other catastrophic events. Id. Further, Metro's employees are required to physically report to work, and Metro's employee handbook states that excessive absences could result in discipline or termination. Id. at 2-3. While Metro has this stated policy, it also allows employees to work from home. DN 58 at 4. Baum's supervisor, Patrick Cahill (“Cahill”), allowed Baum to work from home and other locations besides Metro's office. Id. Baum worked from home regularly. Id.

         In December of 2014, Baum began experiencing heart problems. Id. From December of 2014, to April of 2015, his condition required a trip to the emergency room, a CAT scan, a heart catheter implant, an echocardiogram, and a heart monitor. Id. at 5. Throughout the course of his treatment, Baum occasionally missed work for his medical appointments and Cahill allowed him to work remotely. Id. Baum kept Cahill apprised of his ongoing treatment and absences. Id. at 4- 5. From January to April of 2015, Metro contends Baum was absent from work on eighteen occasions. See DN 56-4.

         On the weekend of April 3-5, 2015, there was severe weather and a fire at the G.E. Appliance Park. Id. at 5. Baum contends that he worked remotely the entire weekend. DN 58 at 5. Metro contends that Baum failed to work that weekend and instead helped a fellow employee move into a new house. DN 56-1 at 5-6. Metro further contends that Baum failed to show up to work during a “critical time for [Metro's] business.” Id. at 6.

         Cahill fired Baum on April 8, 2015. Id. at 3. Cahill told Baum that Metro terminated him “due to his health issues and doctors' appointments and him not being able to sleep at night.” DN 58 at 7. Metro contends it fired Baum for “his repeated failure to perform his job in a satisfactory fashion.” See DN 56-6. Baum never received any discipline regarding his absences during his employment with Metro. DN 58 at 6. But, he was counseled about missing work and admitted that he missed more work during his last year with Metro. DN 56-1 at 6.

         Baum filed an employment discrimination suit against Metro in Jefferson Circuit Court on September 23, 2015. DN 1. Baum brought claims under the American with Disabilities Act of 1990, 42 U.S.C. § 12111(5)(A) (“ADA”), the Kentucky Civil Rights Act, KRS § 344.030, and the Kentucky Equal Opportunities Act, KRS § 201.130. Id. The case was removed to this Court on October 19, 2015. Id. Metro filed its first motion for summary judgment after the close of discovery on November 11, 2016. DN 18. This Court granted Metro's motion in part and denied it in part. DN 25. Metro then filed a second motion for summary judgment, which this Court granted in full. DN 40; DN 47. Baum appealed the entry of summary judgment. DN 49.

         On appeal, the Sixth Circuit reviewed whether Baum had created a genuine issue of material fact “over whether (1) he had a physical impairment that substantially limited one or more major life activities or (2) Metro regarded him as having such an impairment.” DN 51 at 4. The Court held that this Court correctly granted summary judgment on Baum's “actual disability” claim. Id. at 5. The Court reversed the grant of summary judgment on Baum's “perceived disability” claim and remanded the case to this Court. Id. at 6-7.

         At oral argument, Metro attempted to argue that, regardless of Baum's actual or perceived disability, Baum was not otherwise qualified for his position and was not protected under the ADA. The Sixth Circuit did not consider this argument. The Court stated:

In its appellate briefing, Metro didn't contest Baum's qualification for the job without accommodation. At oral argument, however, Metro claimed for the first time that Baum was qualified for the job when he could make it to work but unqualified when he missed time to attend medical appointments. By failing to raise this argument earlier, Metro forfeited it. United States ex rel. Marlar v. BWXTY-12, L.L.C., 525 F.3d 439, 450 n.6 (6th Cir. 2008). Thus, we will focus only on whether Baum has created a genuine issue of material fact over whether he was disabled.

Id. at 3. Metro subsequently filed its third motion for summary judgment with this Court on September 3, 2019. ...

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