Citations
- 828 F. Supp. 2d 889
Full opinion text
OPINION AND ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
WILLIAM O. BERTELSMAN, District Judge.
This matter is before the court on Defendant’s motion for summary judgment. (Doc. #22). Having previously heard oral argument, and having taken the matter under submission (Doc. # 42), the court now issues the following Opinion and Order.
Introduction
Plaintiff Kathleen Laws worked as a licensed practical nurse at HealthSouth Kentucky Rehabilitation Hospital (hereinafter “HealthSouth” or “Defendant”) for almost a decade before she was fired in October 2008. She characterizes Defendant’s disciplinary actions and decision to dismiss her as “unwarranted” and “retaliatory.” After filing a charge with the Equal Employment Opportunity Commission and receiving a right to sue letter, she filed the instant action. See Doc. # 1 at 2 (hereinafter “Complaint”); Doc. # 6 at 2.
Plaintiff claims HealthSouth’s actions amount to discriminatory conduct under the Americans with Disabilities Act (hereinafter “ADA”), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act (hereinafter “ADEA”), 29 U.S.C. § 621 et seq., and the Kentucky Civil Rights Act (hereinafter “KCRA”), the state counterpart to those two federal statutes, Ky.Rev. Stat. § 344.040. See Complaint at 4-7 (Counts I, II, V, VI). She further claims the actions amount to retaliation and interference in violation of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., and § 510 of the Employment Retirement Income Security Act of 1974 (hereinafter “ERISA”), 29 U.S.C. § 1140. See Complaint at 5-6 (Counts III, IV).
Defendant moves for summary judgment on each claim. For the reasons below, the Court grants the motion and dismisses this action with prejudice.
Factual Background
Among other facilities, HealthSouth operates a rehabilitation hospital in Edge-wood, Kentucky, that offers both in-patient and some out-patient services. See Doc. #27-1 at 11 (hereinafter “Fey Depo.”). Plaintiff began working there in 1999 and was responsible for direct patient care.
Lynn Edmondson was Plaintiffs direct supervisor. See Doc. # 36 at 4-5 (hereinafter “Edmondson Depo.”). Chief Nursing Officer (hereinafter “CNO”) Debra Fey was Edmondson’s direct supervisor as of May 2008. Prior to that, other individuals served as Edmondson’s direct supervisor in the CNO capacity. See id. at 2, 4, 5, 9. CNO Fey had many responsibilities, but primarily oversaw “clinical staff,” including “nurses and non-nursing professionals, such as nursing assistants or techs.” Fey Depo. at 11-13.
CNO Fey and Human Resources Director (hereinafter “HRD”) Diane Goldschmidt reported directly to HealthSouth’s Chief Executive Officer (“CEO”) Brenda Gosney. See Doc. # 26-1 at 11 (hereinafter “Goldschmidt Depo.”); Fey Depo. at 16. Part of HRD Goldschmidt’s duties included being the “liaison to the corporate office” in Alabama. As such, she interacted with Regional Director of Human Resources for the Mid-Atlantic Region Joseph Koehler. See Goldschmidt Depo. at 11-12; see also Doc. # 24-1 at 8 (hereinafter “Koehler Depo.”); Doc. # 22-6 at 1, ¶ 1. (hereinafter “Koehler Aff.”). In her liaison capacity, HRD Goldschmidt forwarded employee requests for FMLA leave to the corporate office for approval. See Goldschmidt Depo. at 11-12. She also maintained employee files at HealthSouth and reviewed disciplinary interventions taken by supervisors for consistency with corporate policy and antidiscrimination laws. See id. at 12-14,17-18.
A. 2003 & 2004 — Room For Improvement
Before her health problems began, Plaintiffs evaluations reflected two areas where she could improve her performance — attendance and responding appropriately when frustrated. On April 29, 2003, for example, Plaintiff received verbal counseling regarding “call-ins 3/13, 3/28, 4/2, 4/14, 4/20,” and failing to “report to work when schedule[d].” Doc. # 25-2 at 16, 17 (hereinafter “Dismissal Request Exhs.”). The supervisor responsible for this counseling was Lynn Bean. See Edmondson Depo. at 3-4, 9. Plaintiff did not indicate on the disciplinary form whether she “agreed” or “disagreed,” but did sign it. See Dismissal Request Exhs. at 16,17.
In her 2004 annual performance appraisal, Plaintiff received a “3” in all areas, which meant she “consistently” met the “expectations of the position.” See Doc. # 25-4 at 5. However, she also received a “2” for “attendance regularity and punctuality in reporting to work and returning from breaks ... 7 occurrences.” Id. at 6. The “2” signified that she did “not meet all expectations” and “improvement ... is needed.” Id. at 7. The “areas for improvement” section noted she should only take “the allowed 2 breaks and return on time as well as from meals,” id. at 6, and the “performance improvement action plan section” listed the goal that Plaintiff “improve [her] attendance,” id. at 7. Plaintiff wrote that she “always” came back from meals on time,” id. at 6, but also wrote “yes!” next to the goal of improving attendance, id. at 7.
Another area noted for improvement was for Plaintiff to “keep [her] cool when frustrated with physician,” which is underlined. Id. at 6. Plaintiff signed the form. Id. at 8.
B. 2005 — Aneurysm Surgery
The year 2005 marked the onset of health issues for the Laws family. In April, Plaintiffs husband was diagnosed with cancer and he underwent radiation treatment from the end of the year through the beginning of 2006. Starting in 2007, he began receiving thriee-yearly shots for his condition, and evidently continues to receive them. See Doc. # 31-1 at 1, ¶¶ 1-3 (hereinafter “Laws Aff.”).
In June 2005, Plaintiff developed an aneurysm behind her left eye when an artery ballooned to the “size of a walnut.” See Doc. # 23-1 at 30-31 (hereinafter “Laws Depo.”). She was hospitalized for two weeks and then underwent surgery in early July. The procedure involved placement of a “stent.” She was later readmitted for complications with her eye. All together, she took four months leave from June 2005 through September 2005. She used FMLA leave for this purpose but because the aneurysm came on suddenly and resulted in hospitalization, she did not recall exactly how the paperwork was processed. She believed her surgeons submitted it. See id. at 22, 24-25, 35; Laws Aff. ¶¶ 4-6; Doc. # 36-1 at 5 (hereinafter “FMLA & Evaluations Exhs.”).
Plaintiff signed her annual performance review when she returned to work in late October 2005. See FMLA & Evaluations Exhs. at 10. It again assessed her with a “3” in all areas, meaning performance as expected, and also gave her a “4” in “job knowledge,” meaning “outstanding performance that clearly exceeds expectations of the position.” Id. at 9. A continued “area for improvement,” however, was to “keep [her] cool when frustrated with physician,” id. at 8, with the action plan to “be calm and professional even when frustrated,” id. at 9.
The resulting conditions due to the aneurysm and surgeries were headaches, reduced vision in the left eye, and lack of endurance. Plaintiff had no cognitive effects, however, and her eyesight did not impact her ability to work or perform her normal daily activities. See Laws Depo. at 30-33. In addition, the headaches were not a permanent or chronic condition. See id. at 25-26. Plaintiffs main complaint was lack of endurance, which she attributed to the effects of anesthesia after her two procedures. See id. at 31.
C. 2006 — “Call-In” Problems & Second FMLA Leave Request
Before her second surgery in July 2006, on April 3, 2006, Plaintiff received “verbal counseling” for the “violation” of missing work on March 30, 2006. See Dismissal Request Exhs. at 14, 15. At that time, Supervisor Edmondson was responsible for scheduling nurses’ work shifts and, thus, responsible for tracking Plaintiffs “tardies” and “absences” and reporting them to her supervisor, Jenna Wellbroek. Ms. Wellbroek, acting as CNO, signed the April 3rd discipline form. See Edmondson Depo. at 2, 4, 57. The “description” section notes more than just the isolated March 30th violation, including “(1-10-06) (2-1-06) (3-1-06) (3/20 -3/21) (3/30).” Dismissal Request Exhs. at 14. Plaintiff was advised that, to avoid a written warning for attendance, she must not miss work through end of the year. See id. at 15. Plaintiff “disagreed” with this assessment, noting in writing that each of the listed occurrences were “accompanied by written excuse by a doctor re: my health,” with the exception of March 80th, when she “unexpectedly]” had to “euthanize my cat.” Id. at 14. She refused to sign the counseling form. See id. at 15.
On May 2, 2006, Plaintiff executed a “Request For Family And Medical Leave Of Absence” form and requested leave from “June 22” to “pending.” FMLA & Evaluations Exhs. at 1. The record is unclear whether HRD Goldschmidt transmitted the request, and whether the request was approved for this unspecified and open-ended period. Plaintiff did undergo a second aneurysm surgery on May 12, 2006 according to her doctor (in June 2006 according to Plaintiff) where, apparently, the stent was either replaced or checked. See Laws Depo. at 31, 35; Laws Aff. ¶ 13.
The record does not indicate how long Plaintiff was out of work after the second surgery. She evidently returned by mid-August because on August 13, 2006 she received a written warning for missing work on that day, and was advised that another occurrence before the end of the year would “result in probationary status.” Dismissal Request Exhs. at 12. Plaintiff signed the document. Id. Her annual performance appraisal for 2006 again rated overall performance at “3” and attendance at “2.” FMLA & Evaluations Exhs. at 16, 23. Plaintiff signed the appraisal noting that to “improve on absentism (sic), shouldn’t be a problem since my aneurysm has been fixed now. THX!” Id. at 17.
D. 2007 — “Call-In” Problems & Third FMLA Leave Request
The next eight months passed uneventfully. Then, on March 9, 2007, Plaintiff executed another form “Request For Family And Medical Leave Of Absence,” asking for “intermittent” leave over the course of six months from “3/7/07 and end on 8/7/07.” Id. at 3. According to the physician certification, apparently Plaintiff’s doctor believed that at some point in 2007, the stent either was reopened, or needed to be reopened to “9 mm.” See id. at 5; see also Edmondson Depo. at 9. On March 9th, Plaintiff had complained of a headache and right arm numbness and the doctor scheduled an “follow-up” appointment for April 2nd. See FMLA & Evaluations Exhs. at 5. Plaintiffs condition and complaints did not cause her physician to impose any work restrictions, however. The doctor checked that ‘Yes ... the employee [is] able to perform work of any kind [and] able to perform the functions of the employee’s position.” Id. In response to whether “inpatient hospitalization [is] required,” the doctor did not check “Yes” or “No,” and, instead, wrote “maybe.” Id.
HealthSouth apparently granted leave for the follow-up appointment, but a mix-up ensued regarding other work absences by Plaintiff during the six-month leave period listed in her FMLA leave request. On June 13, 2007, Jenna Wellbrock again verbally counseled Plaintiff for missing work on “1/8/07, 2/27/07, 3/18/07, 5/29/07, 5/31/07,” and advised that another occurrence before the end of the year would “result in written warning.” Dismissal Request Exhs. at 10.
Plaintiff refused to sign. Id. At some point in 2007, Supervisor Edmondson intervened and asked HRD Goldschmidt to “purge” this discipline because Plaintiff was on “FMLA” leave on those 2007 dates. See Laws Depo. at 15-17, 108; Edmondson Depo. at 3, 26-27. Her intervention appears to have settled the matter and Plaintiff did not believe Supervisors Edmondson or Wellbrock ever retaliated against her for complaining about the FMLA mix-up. See Laws Depo. at 17. She also did not dispute the assessments for her 2007 performance appraisal, which gave her an overall performance rating of “3” and a “2” to “3” for attendance, with the comments that she “need[s] to watch non-FMLA absences” and “decrease [her] negativity.” FMLA & Evaluations Exhs. at 25; see also id. at 26, 30-31.
E. February 21, 2008 — Discipline For “Chairs” Insubordination Incident
CEO Gosney prepared a verbal counseling disciplinary form for Plaintiff on February 21, 2008. On the prior day, CEO Gosney was speaking with an employee at the nurses’ station, where Plaintiff was also sitting, and noticed two burgundy chairs there. When she asked if “anyone knew how these chairs got to the nurses station, [Plaintiff] responded in a very rude tone, ‘You saw me bringing them back here this morning.’ ” Dismissal Request Exhs. at 8.
CEO Gosney explained “calmly that we were trying to only keep blue chairs in the nurses station” and “there appeared to an adequate number” of blue chairs there. Id. Plaintiff responded “ ‘Well what do you expect me to do?’ again in a rude tone and escalating.” Id. Because CEO Gosney “had a prior experience” with Plaintiff “responding inappropriately,” she “placed a hand on her shoulder and quietly said ‘Kathy, calm down, we can go talk in my office.’ ” Id. Plaintiff responded “again in a hostile, rude tone of voice T am not going to talk to you anywhere.’ ” Id. CEO Gosney “replied quietly” that she would have Plaintiff talk to Supervisor Edmondson and left. Id.
Plaintiff refused to sign the counseling form. Id. at 9. In her deposition, she explained that she disputed certain details of what CEO Gosney wrote, including that her tone was inappropriate. She also explained that she distrusted CEO Gosney’s motives, believing her timing to be “methodical” since she in fact earlier saw Plaintiff bring in the burgundy chairs. See Laws Depo. at 44-48. However, there is no dispute that Plaintiff told CEO Gosney that she was not going to speak with her and that, had CEO Gosney asked her to remove the chairs, Plaintiff would have refused to do so. See id. at 48-50, 56. Thus, the significant aspect of the discipline form — Plaintiff’s public defiance of CEO Gosney — is undisputed.
F. June 23, 2008 — Discipline For Attendance Issues But No Request For Accommodation Schedule
Throughout 2008, Plaintiff also was not under any limitations from her doctor. See id. at 30. Nor did she submit any requests for leave under the FMLA. See id. at 25. She did continue to have absence problems, however, and missed at least one day a month during the first six months of 2008. See Dismissal Request Exhs. at 6.
Though she was “still suffering from the hypertension and low endurance,” by this point Plaintiff “thought [the residual aneurysm issues were] coming to a close. The headaches were becoming few and far between.” Laws Depo. at 25-26. She missed work only once for “low endurance” and perhaps one or more times was a “headache,” but not all of her “call offs” in 2008 were for those medical reasons. See id. at 26-27. Furthermore, HealthSouth had no reason to know that any those absences were for reasons Plaintiff attributed to her aneurysm condition because Plaintiff never mentioned why she was “calling off.” She “never gave them an excuse [and] never told them what was going on [she would] just say ‘I’m sick,’ ” because she “didn’t feel it was any of their business.” Id. at 27.
CNO Fey began working on May 5, 2008, and took over scheduling from Supervisor Edmondson. See Fey Depo. at 11-12; Fey Aff. ¶ 1; Edmondson Depo. at 2; Doc. # 22-7 at 1, ¶ 2 (hereinafter “Edmondson Aff.”). On June 23, 2008, CNO Fey gave Plaintiff verbal counseling for all the work she had missed so far that year on “1/24/08, 2/15/08, 3/13/08, 4/2/08, 5/27/08” and advised her that another occurrence before the end of the year would “result in a written warning.” Dismissal Request Exhs. at 6. Plaintiff and Supervisor Edmondson consider CNO Fey solely responsible for this “write up,” but Supervisor Edmond’s signature does also appear on the discipline sheet. Id.; see also Edmondson Depo. at 5.
Plaintiff worked a schedule that consisted of a twelve-hour shift, three times a week. See Laws Depo. at 32, 38. She did not specify what days of the week she worked, or which shifts she worked, other than to say that “sometimes” she would be scheduled for “two days in a row, 12-hours shifts.” Id. at 32. The record supports the conclusion that employees had input to their schedules. Indeed, Plaintiffs deposition reveals that employees either provided supervisors with their schedule availability, or made requests to a tentative schedule before one was finalized. See id. at. 34 (“I handed her the schedule ... I gave her my paper and I put tentative, my schedule that I would work.”); c.f. Laws Aff. ¶¶ 10-11 (“[W]hen I first started working at HealthSouth, I could work two double-shifts in a row. After my aneurysm, I could no longer work evening, three 12-hour shifts in a row.”); Doc. #40-1 (entitled “PTO Request Form”).
Contrary to the suggestion in briefing, no one indicated that Plaintiff requested a schedule accommodation due to her surgeries or that Supervisor Edmondson on her own accord made any changes to Plaintiffs schedule to accommodate her condition. By the same token, no one indicated that supervisors routinely scheduled Plaintiff (or any other nurse) for shifts three days in a row, or that they would have done so over a nurse’s protest. The few documents in the record indicate that all nurses were routinely scheduled, at most, for two days in a row on the same shift, then followed by two full days off between the next work day of the week. See Doc. # 40-1 at 1-3.
At some point during the summer, however, CNO Fey scheduled Plaintiff to work three consecutive twelve-hour shifts. Plaintiff said nothing about the situation, and did not request a different schedule, because her “endurance was improving” and she “thought [she] could do it.” Laws Depo. at 39. On the last day of this schedule, she discovered her endurance “wasn’t as good as I thought it would be,” and she could not “handle” the “last four hours of the third day.” Id. at 38-39. Plaintiff complained and “wept” to Supervisor Edmondson about the situation, but never mentioned anything to CNO Fey. See id. at 37-39; see also Laws Aff. ¶ 12.
Nothing in Edmondson’s deposition and affidavit indicate that she said anything to CNO Fey about the situation, either. Plaintiff stated that, if Fey had ever scheduled her for consecutive shifts again, then she would have “said something,” but Plaintiff did not recall ever having to do so again. Indeed, her “desire not to work three straight 12-hour shifts” was not “a problem or controversy.” Laws Depo. at 39-40.
G. Early September 2008 — Time Off For Angiogram Check
In August 2008, Plaintiff requested to use a combination of accumulated paid time off and “extended” sick leave for four days off during early September 2008. When combined with scheduled days off, the request would have Plaintiff off of work from September 4, 2008 to September 14, 2008, and returning to work during the week of September 15, for 12-hour shifts from 6:00 a.m. to 6:00 p.m. on Monday, Tuesday, and Friday. See Doc. # 40-1 at 3-4. Plaintiff informed Fey that she would need the four days off for a “cerebral angiogram.”
Although Fey initially misunderstood the nature of the medical procedure, and thought Plaintiff was having a “stent” placement, Supervisor Edmondson clarified the situation for CNO Fey, and there is no dispute Plaintiff was granted the leave. Likewise, there is no dispute that Plaintiff did not submit her request as FMLA leave. See Laws Depo. at 25-26, 34-38.
H. September 16, 2008 — Vicodin Charting Incident
On September 16, 2008 at “1630” Plaintiff wrote on the “Physician’s Orders” form of a patient’s chart to “D/C Vicodan (sic) per wifes (sic) order!” Doc. # 23-11 at 1. The pharmacist carried out the discontinuation of the medication as “OK’d per wife’s order.” Doc. # 23-10 at 1.
Plaintiff believed her action was justified because the wife had “power of attorney.” See Laws Depo. at 67-68. She did not think what she wrote had the effect of a “viable order” because she “did not cosign a doctor’s name.” Id. at 70; see also id. at 71-72. She does not dispute, however, that she could not issue a physician order unless she first conferred with the physician and asked to enter the order, see id. at 71-72, or that it was her decision alone to put the note on the “physician’s order” form, rather than the “progress notes or the rounding sheets or both,” id. at 70.
Two days after Plaintiff made the note, on September 18, 2008 at “1830,” another nurse wrote on the “Data/Intervention/Patient Response” form of the patient’s chart that the “patient was crying and holding [his left] arm,” and when asked if he was in pain “patient nodded and said yes.” Doc. # 23-9 at 1. Yet another nurse explained that although the patient had been taking the medication one to two times a day, but that the medication had been discontinued per Plaintiffs notation. Id.
The nurse who discovered the problem called the patient’s wife, explained the patient was “crying and [illegible] in pain ... not sleeping at night and ... Vicodin helped before.” Id. The wife agreed to have the medication restarted. The nurse then called “CNO,” who explained it was “OK to give Vicodin” since Plaintiffs entry was not a “legal order to discontinue it.” Id. The nurse also left a note in the doctor’s report, asking “to clarify Vicodin order.” Id.
I. September 18, 2008 — Fey Response To Vicodin Incident
CNO Fey first learned of the incident on September 18, 2008, the day it was reported to her. See Fey Depo. at 91. Having remedied the situation by reinstituting the patient’s medicine, CNO Fey did not believe that leaving Plaintiff on the floor would put any patients in “harms way.” See id. at 90-91.
According to Supervisor Edmondson, CNO Fey asked her to speak to Plaintiff about the situation, but did not indicate that the Vicodin incident “was that big of a deal,” Edmondson Depo. at 17, or request her to “issue any discipline for it,” id. at 18. During their subsequent conversation, both Supervisor Edmondson and Plaintiff recognized that Plaintiff had acted improperly. Supervisor Edmondson told Plaintiff “ ‘you know you can’t do this,’ ” and that if she wanted to “put that in to progress note to alert the doctor, that’s fine. But writing it as an order [was incorrect]’ ”. Id. at 17. Plaintiff replied, “ T know I can’t ... I know that ... It won’t happen again.’ ” Id.
Nevertheless, CNO Fey believed the incident was “serious” enough to investigate with the Kentucky Board whether it was a “reportable” offense, and so she called to inquire. She believed that it took several days to receive an answer. Once she received confirmation that that the event was “reportable,” she began composing the letter to the Board to document the event. According to CNO Fey, she consulted with CEO Gosney about the wording of the letter. See Fey Depo. at 71-75. CEO Gosney’s and HRD Goldschmidt’s depositions, however, indicate that they were unaware about the Vicodin incident prior to October 1st. See Doc. # 25-1 at 33, 35, 57-58 (hereinafter “Gosney Depo.”); Goldschmidt Depo. at 18-19; 53-54.
J. Controversial September 16, 2008 Fey Signature
CNO Fey began Plaintiffs 2008 annual performance review in the Summer of 2008. See Fey Depo. at 97 (document on jump drive, entitled “Laws K 08.doc,” created “7/17/08”); see also Edmondson Depo. at 16-17 (CNO Fey did not discuss evaluations with her that Summer). This new form does not contain an “attendance” section as in the prior years, but “regular attendance and reporting on time to work” is listed as a “requirement of the position.” See, e.g., FMLA & Evaluations Exhs. at 39-40. This document is signed “Debra S. Fey, RN CNO 9/16/08.” Id. at 40. Fey claims this “was not intended to go into file” and “has “no idea” how her signature came to be affixed to it.” Fey Depo. at 98-108.
K. October 1, 2008 — CEO Gosney Discipline Form For “Fearless Leader” Incident
On October 1, 2008, in the morning, CEO Gosney noticed a coffee cup sitting on a dirty laundry hamper, which is “an infection control issue” and gives rise to the HealthSouth policy that “employees are not permitted to have personal drinks in patient care areas.” Gosney Depo. at 13, 14; see also Dismissal Request Exhs. at 4. When CEO Gosney noticed the cup, Plaintiff was standing nearby, just inside a patient’s room, and a technician was inside the patient’s bathroom assisting the patient. When CEO Gosney asked Plaintiff who the cup belonged to, Plaintiff replied she did not know, “[m]aybe hers ... nod[ding] her head toward the bathroom. Gosney Depo. at 14.
When someone from the bathroom inquired, “Who is that?,” Plaintiff, “in a very mocking, derogatory tone ... said, ‘Our fearless leader’ ... ‘Ms. Brenda Gosney.’ ” Id. Because this was delivered in an insubordinate tone, in front of another employee and a patient, and because CEO Gosney had other inappropriate interactions with Plaintiff, she went to speak with CNO Fey. See id. at 11-17, 28.
According to CEO Gosney, she approached CNO Fey immediately after the “fearless leader” incident to report it. Both agree on that point. See id. at 11-12, 50; Fey Depo. at 53, 57-58. Both also agree that during this conversation, CNO Fey brought up the topic of her the concern about Plaintiff “operating outside the scope of practice” for making the entry to discontinue the Vicodin, which CNO Fey was investigating which she believed constituted a “terminable offense.” See Gosney Depo. at 11; 28, 50-51, 54-55.
There is also no dispute that after this conversation, two employee reports immediately issued — an employee disciplinary form compiled and signed by CEO Gosney with the “written” box checked, and an employee discipline form compiled and signed by CNO Fey with the “dismissal” box checked. See Dismissal Request Exhs. at 2, 4.
CEO Gosney’s form cites her February 21, 2008 verbal warning for the chairs/insubordination incident as well as CNO Fey’s June 23, 2008 verbal warning for the 2008 attendance issues. See id. at 4. CNO Fey’s dismissal form only cites a verbal warning, noting the date that the chairs/insubordination incident occurred. See id. at 2.
L. October 1, 2008 — CNO Fey Dismissal Form
After her discussion with CEO Gosney, CNO Fey recommended the suspension and termination. See Gosney Depo. at 34, 55. CEO Gosney agreed that for “a nurse to discontinue medication without physician’s order [is] terminable” conduct. See id. at 66; see also id. at 67-68 (same); Goldschmidt Depo. at 53 (they considered probation, but CNO Fey “wanted termination [because Plaintiff] violated her license by writing the orders, and that was a serious infraction.”).
CNO Fey’s October 1, 2008 dismissal notice provides:
On the evening of Sept 18, 2008 ... I received a call ... from the Charge RN about a situation regarding a patient and his pain medication being discontinued. The Charge nurse asked if an LPN and wife (also POA) could make a decision to discontinue a patient’s pain medication. I told her that only the attending physician could discontinue it but a nurse could make a clinical judgement (sic) to withhold for documented clinical reasons such as low respirations or lethargy for example. The Charge Nurse stated the patient was clearly in need of medication that evening but she was unsure if she could give it. She stated the the (sic) order was written to “D/C Vicodin per wifes (sic) order!” and signed by Kathy Laws, LPN. She further stated the order did not read “verbal order” or “telephone order” indicating the nurse spoke with the physician. No MD subsequently signed the order.
... the pharmacist discontinued the order. When discussed with Kathy, she said she thought the wife could do this as the POA. This discussion was held in the presence of Brenda Gosney, CEO and Diane Goldschmidt, HR.
Corrective Action Plan: Kathy will be placed on suspension for 3 days until a complete investigation takes place. If it is upheld, she will be terminated based on failure to adhere to basic nursing standards that include[,] but are not limited to[,] not take orders from anyone other than an MD or DDS per Kentucky Board of Nursing Standards.
Dismissal Request Exhs. at 2 (emphasis original).
Later that day, CEO Gosney, HRD Goldschmidt, and CNO Fey held a meeting with Plaintiff. See, e.g., Laws Depo. at 58. As for the “fearless leader” incident, Plaintiff does not dispute that the cup in fact posed an infection control issue and the employees are not permitted to have drinks in patient areas. See id. at 51-52. Nor does she dispute that when the technician asked who was speaking, Plaintiff replied, “ ‘Ms. Brenda Gosney, our fearless leader.’ ” Id. at 52-53. She believed the write up was “unwarranted,” however, because she did not think her comment was offensive and she said it for the purpose of cueing the technician to “settle down.” See id. at 53-54,58. She refused to sign the written employee disciplinary form. See Dismissal Request Exhs. at 5.
It is not clear whether Plaintiff saw the Fey dismissal form during this meeting. Fey signed the form, but the other signature slots are blank. See id. at 3. Plaintiff maintains they simply informed her that she was suspended. See Laws Depo. at 59. Even if she did not see CNO Fey’s form, Plaintiff clearly knew the basis for her suspension per that meeting. She immediately contacted a lawyer and the Kentucky Board of Nursing “RE: Legal question: Practicing beyond scope.” She received a response on October 2nd that her question was being forwarded to “Sharon Mercer, the Board’s Practice Consultant.” Doc #23-8 at 2 (“Plf. EMails”); see also Laws Depo. at 61.
M. October 1, 2008 — Goldschmidt Memorandum
CNO Fey recommended termination and both CEO Gosney and HRD Goldschmidt “supported” it, but HRD Goldschmidt was the one who transmitted their recommendation to “corporate” for a final decision. See, e.g., Fey Depo. at 45, 51-57. Her transmittal memorandum to Regional Director Koehler provides in full:
We are requesting termination of Kathy Laws, LPN. We have put her on a 3 day suspension pending the investigation of her writing an order to discontinue a patient’s medication without obtaining orders from a Physician. It was brought to the attention of the CNO by the Charge Nurse, that Kathy had written on the MAR to discontinue a narcotic per the wife’s order. The pharmacist on duty discontinued the medication. When discussed with Kathy, she said she thought the wife could do this as the POA. Per the Kentucky Board of Nursing, nurses are only permitted to take orders from an MD or DDS.
Kathy has had other disciplinary issues in the past including attendance and rudeness to the CEO in front of other employees and patients including and incident that occurred on 10/1/08. Please see attached disciplinary forms. I will need an answer on the termination by Monday 10/6/08.
Dismissal Request Exhs. at 1. The attachments to the transmittal memorandum included:
(1) CNO Fey’s 10/1/08 dismissal form;
(2) CEO Gosney’s 10/1/08 fearless leader discipline form;
(3) CNO Fey’s 5/23/08 verbal discipline form for 2008 attendance issues;
(4) CEO Gosney’s 2/21/08 chairs/insubordination discipline form;
(5) Supervisor Wellbrock’s 6/13/07 verbal discipline form for the 2007 attendance issues that Supervisor Edmondson testified HRD Goldschmidt was to have purged from the file as some to the dates included intermittent FMLA leave;
(6) Supervisor Wellbrock’s 8/13/06 verbal discipline form for Plaintiff having missed work one day in August 2006;
(7) Supervisor Wellbrock’s 4/3/06 verbal discipline form for the earlier 2006 attendance issues that Plaintiff contested were excused by a doctor or necessitated by her cat’s illness;
(8) Supervisor Bean’s 4/29/03 verbal discipline form for the 2003 attendance issues.
Id. at 2-17.
In other words, HRD Goldschmidt copied Plaintiffs entire disciplinary file, as both she and Regional Director Koehler testified was standard operating procedure. See Goldschmidt Depo. at 23 (with any employee termination, “HealthSouth Corporate Office wants the whole history of any disciplinary actions [and so she] send[s] them everything that’s in the file.”); id. at 45 (same); Koehler Depo. at 11 (“In my process, and today, if I had another termination request, I would be provided a history, like we see here, of disciplinary actions. And those disciplinary actions, while they may not have any bearing on the current situation whatsoever, they are the history, only to demonstrate this individual has had a history of performance or attendance or whatever the case may be. Performance-related issues.”).
N. Regional Director Koehler Gives Approval To Fire Plaintiff
HealthSouth’s corporate structure and protocol is not in dispute. “Corporate” has final approval over requests to terminate an employee. Therefore, while the local CEO, CNO, HRD “leadership” is “involved” with termination decisions, Regional Director Koehler was the “ultimate decisionmaker. He reviewed HRD Goldschmidt’s “recommendation,” the documentation submitted with it, followed up with a call to HRD Goldschmidt to discuss the results of the investigation of the Vicodin incident, and gave his permission to follow through with termination. He was adamant that the attendance issues had nothing to do with his decision and that the sole basis for his decision was Plaintiffs discontinuation of the patient’s Vicodin. See Koehler Depo. at 6, 9-19; see also Koehler Aff. ¶ 4 (“This action alone warranted termination. I did not take Mrs. Law[’]s history of disciplinary actions for absenteeism into consideration.”).
O. Subsequent Events
On October 2, 2008, Plaintiff received the response from the Board that it is outside the scope of “licensed practical nursing practice to write an order to discontinue a medication unless you are receiving a verbal order and have notice it as such,” and that because Plaintiff was not noting a “verbal order, she was “practicing outside your scope of practice.” Plf. EMails at 2. The next day, Goldschmidt called Plaintiff to let her know of Koehler’s decision and that she was fired “because of the pain incident.” Goldschmidt Depo. at 48.
Discrimination Cases & Summary Judgment Standard
“The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir.2010) (internal quotations and citations omitted). A plaintiff can prove discrimination by direct or circumstantial evidence. See, e.g., Geiger v. Tower Automotive, 579 F.3d 614, 620 (6th Cir.2009) (ADEA context); Crawford v. TRW Automotive U.S. LLC, 560 F.3d 607, 613 (6th Cir.2009) (ERISA context), cert. denied, — U.S. —, 130 S.Ct. 1068, 175 L.Ed.2d 927 (2010); Burus v. Wellpoint Companies, Inc., 434 Fed.Appx. 475, 481-82 (6th Cir.2011) (ADA context); Clark v. Walgreen Co., 424 Fed.Appx. 467, 472-73 (6th Cir.2011) (FMLA context). “Direct evidence of discrimination is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Geiger, 579 F.3d at 620 (internal quotation and citation omitted). On the other hand, “[c]ircumstantial evidence ... is proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.” Id. (same).
In a circumstantial evidence case, the Sixth Circuit has “long found the McDonnell Douglas framework useful in analyzing evidence ... of [the discrimination] claims.” Id. at 622; see also Crawford, 560 F.3d at 613 (“Plaintiffs may make this showing either through direct or circumstantial evidence, with the latter via the ubiquitous [McDonnell Douglas] burden-shifting framework that has, like some B-movie villain, devoured nearly every area of law with which it has come into contact.”). As Plaintiffs response attests, the theory of recovery for which she asserts direct evidence, and the one she affords most weight, is her FMLA claim. For all of her claims, however, she relies on circumstantial evidence to establish a prima facie case. See Doc. # 31 at 12 (“Response”). HealthSouth argues that Plaintiff cannot show direct evidence of discrimination, and/or a prima facie case, and/or that the proffered reasons for her discharge are pretextual. See Doc. #21-1 (“MSJ”).
Plaintiff generally maintains that summary judgment is “rarely appropriate” when the “motivation, intent, or state of mind” of the employer is at issue. Response at 10. She relies on Ross v. Campbell Soup Co., 237 F.3d 701, 706 (6th Cir.2001), for this proposition, but the applicable statement she cites was one made by the district court, not the Sixth Circuit. Although there are plenty of decisions that observe the difficulty in granting summary judgment when motive or intent is at issue, summary judgment is not foreclosed simply because a case involves such issues. See, e.g., Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989) (“Cases involving state of mind issues are not necessarily inappropriate for summary judgment.”).
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Thus, even in a discrimination case, summary judgment in favor of Defendant is appropriate if Plaintiff “fails to make a showing sufficient to establish the existence of an element essential to [her] ease, and on which [she] will bear the burden of proof at trial.” Whitfield v. Tennessee, 639 F.3d 253, 258 (6th Cir.2011) (internal quotations and citations omitted).
Analysis Of Plaintiff’s Prima Facie Showings
Generally speaking, if a plaintiff fails to establish each element of a prima facie case, then no further analysis is required and a defendant would be entitled to summary judgment. Though the relevant statutes contain some overlapping inquiries, they all require different proof. Except perhaps with the exception of one narrow aspect of one of Plaintiffs FMLA claims, she fails to establish one or more of the requisite prima facie elements.
A. ADEA Claim (Counts V and VI).
The standards for the ADEA and KCRA are the same, so the Court’s ADEA analysis here subsumes the state claim. See, e.g., Sharp v. Aker Plant Servs. Group, Inc., No. 3:09-CV-429-S, 2011 WL 864952, at *3 (WD.Ky. Mar. 11, 2011) (citing Allen v. Highlands Hosp. Corp., 545 F.3d 387, 393-94 (6th Cir.2008)). In contrast to Title VII, the ADEA prohibits “discharge ... because of ... age,” and the Supreme Court held this language does not authorize a “mixed-motives” ADEA claim. Gross v. FBL Financial Senices, Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009). An employer takes adverse action “because of’ age, only when age was the “reason” for the employer’s decision. This means age must have “ ‘actually played a role ... and had a determinative influence on the outcome.’ ” Id. (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)) (emphasis omitted). Likewise, under state law, “there is no mixed-motive theory of recovery available to plaintiffs under the Kentucky Civil Rights Act.” Breen v. Infiltrator Systems, 417 Fed.Appx. 483, 488 (6th Cir.2011) (citing Macy v. Hopkins County Sch. Bd., 484 F.3d 357, 363-64 & n. 2 (6th Cir.2007), and Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1178 (6th Cir.1996)).
The import of the Gross decision is not entirely settled. However, in a post-Gross decision, the Sixth Circuit reiterated that a plaintiff can establish age discrimination by direct or circumstantial evidence, but in either situation retains the burden of persuasion “to demonstrate ‘that age was the but-for cause of their employer’s adverse action.’ ” Geiger, 579 F.3d at 620 (quoting Gross, 129 S.Ct. at 2351 n. 4). Here, the only “direct evidence” of discrimination Plaintiff asserts is in connection with her FMLA claim. See Response at 12. To prove her ADEA claim, Plaintiff relies on the circumstantial evidence approach. See id. at 25-26. And because this is a circumstantial evidence case, notwithstanding the Gross decision, under the law as it presently stands in the Sixth Circuit, the “McDonnell Douglas framework can still be used to analyze ADEA claims.” Geiger, 579 F.3d at 622; see also, e.g., Schoonmaker, 595 F.3d at 264, n. 2.
A classic expression of the framework in the age discrimination context is that to establish a prima facie case, Plaintiff must show: first, she was a member of the protected class, meaning over forty years of age; second, she was discharged; third, she was “qualified” for the position she held; and, fourth, HealthSouth replaced her with someone who falls outside the protected class. See, e.g., Grubb v. YSK Corp., 401 Fed.Appx. 104, 113-14 (6th Cir.2010) (citing Geiger, 579 F.3d at 622); Jones v. Shinseki, 804 F.Supp.2d 665, 672-73 (M.D.Tenn.2011) (same). An alterna tive showing for the fourth prong in disparate treatment age discrimination case is the notion of comparatively different treatment. Thus, in “disparate treatment cases, the fourth element may be replaced with the requirement that the plaintiff show she was treated differently from similarly-situated individuals.” Policastro v. Northwest Airlines, Inc. 297 F.3d 535, 539 (6th Cir.2002); see also, e.g., Badertscher v. Procter & Gamble Mfg. Co., 405 Fed.Appx. 996, 997 (6th Cir.2011); Grubb, 401 Fed.Appx. at 114, n. 6. HealthSouth con tends Plaintiff fails to establish the third and fourth prongs.
(1) “Qualified.” HealthSouth argues that because Plaintiff was insubordinate and discontinued pain medication, she was not performing to its “reasonable satisfaction” or doing “what was expected” of her in her job. In other words, Plaintiff was “unqualified” because of the conduct that led to her being fired. As Plaintiff notes, however, the Sixth Circuit has long and expressly rejected consideration of firing justifications at the prima facie stage. See Response at 26.
A court “ ‘may not consider the employer’s alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie case,’ ” because doing so “ ‘would bypass the burden-shifting analysis and deprive the plaintiff of the opportunity to show that the nondiscriminatory reason was in actuality a pretext designed to mask discrimination.’ ” Idemudia v. J.P. Morgan Chase, 434 Fed.Appx. 495, 501 (6th Cir.2011) (emphasis added) (quoting Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir.2003) (en banc)); see also, e.g., Schoonmaker, 595 F.3d at 264. Instead, at this stage the court is to “focus on a plaintiffs objective qualifications to determine whether he or she is qualified for the relevant job.’ ” Idemudia, 434 Fed.Appx. at 501 (quoting Wexler, 317 F.3d at 575).
In reply, Healthcare takes no issue with the above law or Plaintiffs objective qualifications. See Doc. # 33 at 12-14 (“Reply”). Indeed, Plaintiff was a licensed and experienced nurse of long-standing even before she became employed at HealthSouth. See, e.g., Laws Depo. at 6-7. Accordingly, the Court finds Plaintiff satisfies the third prong of the prima facie case.
(2) “Replaced.” Plaintiff was fifty-five years old at the time of her termination. See, e.g., MSJ at 10. She points to two employees who were hired within a year of her being fired. The male LPN, hired a year later, “was born in 1963” and the female RN, hired five months later, “was born in 1964.” Response at 28.
Despite the classic wording of the fourth prong, the replacement hire does not have to fall “outside” the protected class. That is the case here, as the two replacement hires Plaintiff cites fell within the “protected class [of] all workers 40 years old or older.” See Corrigan v. U.S. Steel Corp., 478 F.3d 718, 727 (6th Cir.2007). It will suffice if they were “significantly younger,” which means they were at least eight years younger than Plaintiff when she was replaced. Id. at 727; see also Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir.2003) (less than six years presumptively insignificant, but eight to ten years younger qualifies as significant). The individuals Plaintiff cites were approximately forty-five years old when they were hired and thus, at least eight years and likely ten years younger than Plaintiff.
However, an employer is considered to have “replaced” the plaintiff “ ‘only when another employee is hired or reassigned to perform the plaintiffs duties.’ ” Grosjean, 349 F.3d at 336 (quoting Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir.1990)). Thus, if another existing employee temporarily takes on the plaintiffs responsibilities by working overtime until the company eventually hires someone else to fill the vacant position, “replacement” occurs when the new person is hired. See, e.g., Jones, 804 F.Supp.2d at 672-73 (citing Grosjean, 349 F.3d at 336). Conversely, a “ ‘person is not replaced when another employee is assigned to perform the plaintiffs duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work.’ ” Id. (same).
HealthSouth argues that Plaintiff cannot show it “replaced” her with a younger employee because Plaintiff submits no evidence showing that HealthSouth tried to fill Plaintiffs vacant position or that the LPN or the RN worked the same “shift” as Plaintiff. See MSJ at 10 (citing Barnes); see also Reply at 13-14.
On this state of the record, while Plaintiff has submitted evidence tending to show that HealthSouth hired two significantly younger people to work after she was fired, she does not supply the link between their hiring and performance of her former duties. Accordingly, she fails to show she was “replaced” as one alternative to meet the fourth prong of the prima facie case.
(3) “Similarly-Situated.” Decisions often attribute the “similarly-situated” showing to the Sixth Circuit’s decision in Mitchell, which explained that the requirements are stringent:
It is fundamental that to make a comparison of a discrimination plaintiffs treatment to that of [other] employees, the plaintiff must show that the “comparables” are similarly-situated in all respects. Stotts v. Memphis Fire Department, 858 F.2d 289 (6th Cir.1988). Thus, to be deemed “similarly-situated,” the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.
Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir.1992); see also, e.g., Henry v. Delta Air Lines, Inc., No. 2:10-CV-00009-WOB, 2011 WL 3444089, at **8-9 (E.D.Ky. Aug. 8, 2011).
Plaintiffs proffered evidence fails to meet this standard. In support, she cites three nurses in their twenties. One was not terminated for failing to “document vital signs for a liver transplant patient” and only verbally reprimanded for attendance issues. Response at 27. Another was placed on probation for failing to “properly chart vital signs” and not fired when the same conduct occurred a week later. Id. Another was placed on probation for entering a note in a chart that a patient received medication when the medicine was later found in a drawer. Id.
None of these incidents are similarly-situated in all respects with the charting error Plaintiff made. Even assuming the three young nurses dealt with the same supervisor, the undisputed and different circumstance between their conduct and Plaintiffs was that Plaintiff made a chart entry in the section for doctors’ orders that discontinued a patient’s pain medicine without a doctor having ordered the change, and her unilateral decision resulted in a patient in tears telling a nurse he was in pain. See Laws Depo. at 69-71; Gosney Depo. at 139-40; compare Goldschmidt Depo. at 52-53 (she recalled HealthSouth fired two RN’s for stealing patient medications), with Fey Depo. at 73-74 (the discontinuation note was the most “serious” infraction she had seen in thirty years of nursing and noting that stealing patient mediations, while “serious” and “reportable,” may not necessarily have resulted in harm to patient). Accordingly, Plaintiff fails to establish a genuine issue on the other alternative to the fourth prong as well.
(4) Catch-All Alternative For Fourth Prong. Plaintiff appears to posit another alternative as a means to satisfy the fourth prong. If the Court understands correctly, she maintains that she can satisfy the last necessary element of a prima facie case by showing: “that additional direct or circumstantial evidence exists that shows that the employer was motivated by her age or disability in making its decision.” Response at 25. However, the only evidence she submits for the fourth prong is the new hires and comparative discipline examples discussed above. See id. at 27-28.
Furthermore, this “catch-all” alternative is inapplicable as a matter of law because the Sixth Circuit recently rejected this sort of argument. In that case, the plaintiff could not show “replacement” or “a similarly situated younger person who was treated better,” and wanted to substitute “other circumstantial evidence of discrimination.” Green v. Fidelity Investments, 374 Fed.Appx. 573, 577 (6th Cir.) (internal quotations and citations omitted), cert. denied, — U.S. —, 131 S.Ct. 598, 178 L.Ed.2d 435 (2010). The Green decision acknowledged that the McDonnell Douglas test should not be formalistically applied, but held that the “fact that [the plaintiff] cannot establish a prima facie case under the framework is not itself a sufficient reason to dispense with the test in favor of a more forgiving standard.” Id. Finally, the cases Plaintiff seemingly cites in support of the catch-all alternative fail support her position.
B. ADA Claim (Counts I and II).
(1) Clarifications On Applicable Law. Several points require clarification at the outset. While Plaintiffs complaint does not specify which section of the ADA affords her relief, the court assumes it is Title I, which “provides that a covered employer ‘shall [not] discriminate against a qualified individual on the basis of disability in regard to ... discharge of employees.’ ” Whitfield, 639 F.3d at 258 (quoting 42 U.S.C. § 12112(a)). Also, Plaintiffs citation to the Ohio statute disability statute is an evident typographical error in light of her complaint, which asserts a disability claim under the KCRA. Compare Response at 2, with Complaint at 5.
For ADA discrimination claims, in the absence of direct evidence, a variant of the McDonnell Douglas burden-shifting analysis applies. See, e.g., Whitfield, 639 F.3d at 259; Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir.2008). Defendant asserts that the prima facie case for an ADA claim is three-pronged, see MSJ at 13-14, but that is not so under current Sixth Circuit law as clarified by the Whitfield decision.
As Whitfield explains, the “Ma-hon formulation” cited by Defendant, which requires as its final element that plaintiffs show they were subject to an adverse action “solely” because of the disability, forecloses plaintiffs from establishing a prima facie case by indirect evidence using the McDonnell Douglas framework. Whitfield, 639 F.3d at 259 (citing Mahon v. Crowell, 295 F.3d 585, 589 (6th Cir.2002)). Instead, the correct test is the five-prong “Monette formulation,” which is parallel to that under the ADEA above:
To make out a prima facie case of employment discrimination through indirect evidence under Title I, a plaintiff must show that “1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiffs disability; and 5) the position remained open while the employer sought other applicants or the disabled individual was replaced.” Macy v. Hopkins Cty. Sch. Bd. of Educ., 484 F.3d 357, 365 (6th Cir.2007) (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir.1996)).
Id. at 258-59. Thus, the only cognizable arguments Defendant raises pertain to whether Plaintiff qualifies as “disabled” under the first prong.
Defendant’s alleged conduct and the date Plaintiff was fired took place before the amendments to the ADA went into effect on January 1, 2009. As such, the law as it existed at the time of her termination applies. Specifically, the stricter definitions of “disability” under the Supreme Court’s Toyota and Sutton decisions will apply to this case. See, e.g., Scott v. G & J Pepsi-Cola Bottlers, Inc., 391 Fed.Appx. 475, 479 n. 3 (6th Cir.2010); see also Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 190-91, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Even with these former definitions applicable, the standards for the ADA and KCRA again are the same, and the Court’s analysis applies equally to both. See, e.g., Bryson v. Regis Corp., 498 F.3d 561, 574 (6th Cir.2007).
(2) Major Life Activities Are “Seeing” And “Work.” The 2008 version of the ADA defines “disability” as:
(2) Disability
The term “disability” means, with respect to an individual—
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
Watts v. United Parcel Service, 378 Fed.Appx. 520, 524-25 (6th Cir.2010) (emphasis omittedXquoting 42 U.S.C. § 12102 (2008)). A “substantial limitation” can be the “manner or duration” under which Plaintiff performs “compared to [an] average person in the general population ... performing] the same major life activity.” 29 C.F.R. § 1630.2(j)(l)(ii).
Neither party discusses which “major life activity” of Laws is allegedly impacted, and the regulations list several including “seeing,” and “working.” See, e.g., id. at 29 (citing 29 C.F.R. § 1630.2(1)). The sole “impairment” Plaintiff relies upon is her aneurysm and the two physical consequences of it — loss of vision in her left eye and lowered “endurance” that precluded her from working consecutive twelve-hour shifts three days in a row. Thus, the Court will assume Plaintiff is asserting that the impacted “major life activity” is “seeing” and “work.”
(3) Plaintiff Fails To Show An Actual Disability. Simply having a medical condition is insufficient to establish a “disability” within the meaning of the ADA. “Minor” impairments also do not suffice. See, e.g., Bryson, 498 F.3d at 575 (citing Toyota, 534 U.S. at 195-96, 122 S.Ct. 681). Nor does preclusion from one type of work such as the pilots with severe myopia in Sutton who were deemed “substantially limited” in their ability to fly aircraft. Id. at 576 (citing Sutton, 527 U.S. at 493, 119 S.Ct. 2139). A plaintiff instead must show that she is “ ‘significantly restricted in ability to perform either a class of jobs or a broad range of jobs in various classes.’ ” Id. (quoting 29 C.F.R. § 1630.2(j)(3)(i)) (emphasis added); see also, e.g., Milholland v. Sumner Cty. Bd. of Educ., 569 F.3d 562, 568 (6th Cir.2009) (citing same).
Plaintiffs passing mention of the one isolated instance where her relative lack of endurance forced her to leave four hours early is utterly insufficient for her to sustain her burden. No doctor put her under any sort of restriction due to her aneurysm. She never requested a schedule accommodation due to her lack of endurance. Instead, she worked full schedules while simultaneously being able to pursue her ordinary daily activities and has been looking for work ever since she was fired. See, e.g., Laws Depo. at 30-33.
The undisputed evidence establishes that Plaintiff had nothing other than minor impairments following surgery, and she certainly does not show that her eyesight or endurance level barred her “from working in all jobs within the [nursing] field” or prevented her “from holding a large number of jobs in other categories of employment.” Bryson, 498 F.3d at 576. “An ‘impairment that only moderately or intermittently prevents an individual from performing major life activities is not a substantial limitation’ under the ADA.” Id. at 576 (quoting Mahon, 295 F.3d at 590-91). And, where “jobs utilizing an individual’s skills ... are available, one is not precluded from a substantial class of jobs.” Milholland, 569 F.3d at 568 (internal quotations and citation omitted). Accordingly, Plaintiff fails to present any evidence that creates a genuine issue that she was “disabled” within the meaning of the ADA or the KCRA.
(4) Plaintiff Fails To Show “Regarded As” Disability. For a “regarded as” disability claim, it is not sufficient for Plaintiff to show HealthSouth “regarded [her] as somehow disabled; rather, the plaintiff must show that the employer regarded the individual as disabled within the meaning of the ADA.’ ” Jones v. Nissan North America, Inc., 438 Fed.Appx. 388, 397 (6th Cir.2011) (emphasis added) (quoting Ross, 237 F.3d at 709). Plaintiff would need to show that HealthSouth regarded her aneurysm effects as “substantially limiting” her from working in a “broad class of jobs,” but here Plaintiff was neither substantially limited nor precluded from working. Accordingly, summary judgment is also appropriate on the “regarded as” aspect of Plaintiffs ADA claim, even if she had established that HealthSouth accommodated her relative lack of endurance by giving her a reduced schedule. See, e.g., id. at n. 11; Milholland, 569 F.3d at 568-69; see also Linser v. State of Ohio, Dept. of Mental Health, No. 99-3887, 2000 WL 1529809, at *4 (6th Cir. Oct. 6, 2000) (“The fact that Defendants previously granted Linser’s request for accommodation does not by itself establish that Defendants regarded Linser as disabled.... Moreover, there is no evidence in the record which tends to show that Defendants perceived Linser as incapable of working a class of jobs or a broad range of jobs.”).
Accordingly, Plaintiff fails to present any evidence that creates a genuine issue that she was “disabled” within the meaning of the ADA or the KCRA.
C. ERISA Claims (Count IV).
In Count IV, Plaintiff brings suit under section 510 of ERISA. See Complaint at 6. Section 510 alternatively prohibits “discharge” or “discrimination” against a “participant or beneficiary” for: (1) “exercising any right to which [s]he is entitled under the provisions of an employee benefit plan,” or (2) “the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.” 29 U.S.C. § 1140. The subtitle to Count IV in Plaintiffs complaint indicates that she is pursuing both “retaliation” and “interference” theories of recovery under ERISA. See Complaint at 6.
Plaintiff does not identify the precise “employee plan” at issue and, presumably, she means her health insurance coverage. Also, save for one requirement, “retaliation” and “interference” are two are independent theories with different elements, but the parties do not distinguish between the two. Finally, Plaintiff does not even mention her retaliation claim in response and focuses exclusively on “interference.” See Response at 31-32. In the interest of completeness, however, the Court will address both.
(1) Elements Of Prima