United States District Court, W.D. Kentucky, Louisville
JONATHAN C. BAUM PLAINTIFF
METRO RESTORATION SERVICES, INC. DEFENDANT
Charles R. Simpson III, Senior Judge.
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.
Facts and Procedural History
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
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.
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.
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.
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.
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.
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.
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. ...