Suchanek v. University of Kentucky et al
Filing
81
MEMORANDUM OPINION AND ORDER: 1. That the defendants' Motion for Summary Judgment (Record No. 55 ) is GRANTED. 2. The defendants' pending Motion in Limine (Record No. 78 ) is DENIED as moot. 3. The pretrial conference and tr ial dates are VACATED and CANCELED. 4. A separate judgment will be entered this date in favor of Defendants University of Kentucky and Robert Shay, in his official and individual capacities. Signed by Judge Danny C. Reeves on 7/25/2011. (AKR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Frankfort)
JEANNE SUCHANEK,
Plaintiff,
V.
UNIVERSITY OF KENTUCKY, et al.,
Defendants.
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Civil Action No. 3: 10-19-DCR
MEMORANDUM OPINION
AND ORDER
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This matter is pending for consideration of the defendants’ Motion for Summary
Judgment. [Record No. 55] For the following reasons, the defendants’ motion will be granted.
I.
Background
Jeanne Suchanek worked at the University of Kentucky from October 1998 until she
resigned on April 25, 2009. During that time, she was employed as the Director of Development
for the College of Fine Arts. In her position as Director, Suchanek was under the supervision
of the Dean of the College of Fine Arts, Robert Shay. At its essence, this case arises out of the
deteriorating relationship between Shay and Suchanek, which she alleges led to her resignation.
Suchanek argues that Shay’s treatment of her resulted from disability discrimination and
retaliation, while Shay claims that he dealt with Suchanek fairly, but she simply failed to meet
the expectations of a senior development officer at the University.
In 2005, Suchanek was diagnosed with breast cancer. When Suchanek learned of her
diagnosis, she sent an e-mail to her department and informed her co-workers of her condition.
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She informed them that she would be taking time off for surgery, but would be available by
phone and e-mail. Suchanek requested, and was given, eight days off to undergo a lumpectomy.
Following surgery, Suchanek completed seven weeks of radiation and began a five-year
hormone treatment plan. Suchanek did not miss work for her radiation treatments; instead, she
used her lunch breaks to attend medical appointments and receive treatment.
On the leave form for her surgery, Suchanek’s absence was designated as temporary
disability leave with pay. [Record No. 55-7] Suchanek now claims that she would have
preferred the leave to be classified as FMLA leave. The University provided information to its
employees regarding FMLA leave during new-employee orientation, in its staff handbook, and
through its online listing of policies and procedures. The University also claims that it provided
information regarding FMLA at a weekly staff meeting in April 2006. However, Suchanek
claims she was not specifically informed of her FMLA rights at the time she requested leave.
Suchanek contends that, after returning to work, her doctor told her to “avoid bigger
crowds” because of her weakened immune system. Suchanek also claims that she experienced
other side effects resulting from her ongoing treatments, such as insomnia, persistent hot flashes,
and fatigue. According to Suchanek, these limitations prevented her from performing her job
in the same way she had prior to her diagnosis.
Substantial attention in this case is given to Suchanek’s performance evaluations. Per
University Policy, employees were evaluated by superiors on at least an annual basis. Yearly
performance evaluations were completed in February and March for the prior year (i.e., the 2007
evaluations were completed in March 2008). On her 2005 evaluation, completed March 3, 2006,
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Suchanek received a score of 4.7 out of a possible 5 points. In regard to her cultivation of
current and potential donors, Shay commented that Suchanek “[c]onsistently meets and/or
exceeds expectations in this particularly.” [Record No. 55-14, p. 2] Regarding her performance
developing and implementing of solicitation strategies, Shay wrote, “Excellent strategist in more
areas than just development.” [Id., p. 1]
However, beginning with her 2006 evaluation, Suchanek’s scores began to drop. On her
initial 2006 evaluation, Suchanek was given a 2.9 out of 5. Shay wrote that Suchanek’s
“[q]uality of work in [the development of new strategies] ha[d] diminished significantly.”
[Record No. 55-12] Shay cited an “unwillingness to develop [her] portfolio” of donors and a
“[p]oor attitude toward Central Development.” [Id.] In response to Shay’s evaluation, Suchanek
wrote the following comment on her evaluation form:
I would like to explain the difference in this year’s cultivation efforts and last
year’s efforts. Because of a diagnosis of early-stage breast cancer in late 2005,
I was advised by my doctor to limit my exposure to crowds because of my
immune system. I did not participate in cultivation efforts as I should have and
tried to be more active in coordinating the efforts of the Dean and Department
Chairs. Because of my complete recovery, I anticipate a much more aggressive
plan of action in 2007, including following the Dean’s strategy of contacting
current and potential donors throughout Kentucky.
[Record No. 55-16, p. 4] The parties dispute whether Suchanek, in this comment, was the first
to mention her breast cancer in connection with her performance. Suchanek claims that she
wrote the comment in response to a discussion with Shay before the draft evaluation was
provided to her. However, after Suchanek added her comment, Shay updated her evaluation, and
noted at one point that “Jeanne’s work with donors this year did diminish because of her
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recovery from breast cancer.” [Id., p. 2] Along with his updated comments, Shay raised
Suchanek’s evaluation from a 2.9 to a 3.1.
Prior to the next year’s evaluation, Suchanek spoke with the University’s human
resources department about how to dispute an evaluation. She was told to document her
performance and complete a self-evaluation in preparation for her yearly evaluation. Also, in
March 2008, Suchanek contacted Patty Bender, the University’s Vice-President for Equal
Opportunity, to voice her concerns that she was being discriminated against due to her breast
cancer.
Before Suchanek’s 2007 evaluation, Shay sent her an e-mail to inform her that he
expected she would be disappointed with her ratings. Suchanek forwarded the e-mail to Bender,
and the two exchanged e-mails regarding the process for lodging a discrimination complaint.
[Record No. 55-21] When Suchanek eventually received the evaluation, Shay had given her a
2.05 rating. During this same time, Shay sent Suchanek a letter that described the University’s
tightening of its rating system in an attempt to “curb grade inflation.” [Record No. 55-19]
A rating below three points meant Shay was required to place Suchanek on a Performance
Improvement Plan (PIP). Shay did so, and monitored Suchanek’s progress at thirty, sixty, and
ninety-day intervals. Suchanek completed the PIP, with positive feedback from Shay in
November 2008, but her 2008 evaluation nevertheless resulted in a rating of 2.4. Suchanek
claims that the job standards applied for her 2008 evaluation were different – and significantly
more stringent – than the standards that had been previously applied. She was placed on another
PIP.
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Suchanek resigned from the University on April 24, 2009. However, she classifies her
resignation as “involuntary.” [Record No. 64, p. 11] On May 18, 2009, Suchanek began work
for a new employer. She was named the Director of Stewardship and Development for Mary
Queen of the Holy Rosary Parish with the Diocese of Lexington.
On April 2, 2010, Suchanek filed this action in Franklin Circuit Court against the
University and Shay, in his individual and official capacities. The defendants timely removed
the case to this Court. [Record No. 1]
II.
The Summary Judgment Standard
Summary judgment is appropriate when the moving party shows, using evidence in the
record, “that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see (c)(1). In deciding whether to grant
summary judgment, the Court views all the facts and inferences drawn from the evidence in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). To avoid summary judgment, the nonmoving party must establish
the existence of a genuine issue of material fact as to each essential element of its case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III.
Analysis
Suchanek’s Complaint contains seven counts: violation of the Family Medical Leave Act
(FMLA); disability discrimination; disability harassment/hostile work environment; constructive
discharge; retaliation; breach of implied contract; and intentional infliction of emotional distress.
[Record No. 1-3] For each count, Suchanek has failed to raise a genuine issue of material fact
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as to at least one element of a prima facie case. Therefore, each of her claims fails as a matter
of law, and the Court will grant summary judgment in favor of the Defendants.
A.
FMLA
There are two avenues for recovery under the FMLA: (i) an “entitlement” or
“interference” theory and (ii) a “retaliation” or “discrimination” theory. Hoge v. Honda of Am.
Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). Suchanek alleges only an interference claim.
[Record No. 64, p. 17 (“Suchanek’s complaint does not allege a claim for retaliation or
discrimination.”)] A claim for FMLA interference arises under 29 U.S.C. § 2615(a)(1), which
states that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise
of or the attempt to exercise, any right provided” under the FMLA. To prevail on an interference
claim, a plaintiff must prove:
(1)
(2)
(3)
(4)
(5)
the claimant was an “eligible employee” under 29 U.S.C. § 2611(2);
the employer was an “employer” under 29 U.S.C. § 2611(4);
the employee was entitled to leave under the FMLA;
the employee gave the employer notice of her intention to take leave; and
the employer denied the employee FMLA benefits to which she was entitled.
Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 720 (6th Cir. 2003). The defendants have
conceded that Suchanek was an eligible employee and that the University was an employer as
defined by the FMLA. [See Record No. 55, p. 26] The Court thus begins its analysis with the
third element.
1.
Entitlement to Leave
An employee is entitled to leave under the FMLA when she has “a serious health
condition that makes [her] unable to perform the functions of [her] position.” 29 U.S.C. §
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2612(a)(1)(D). Suchanek’s breast cancer was a serious health condition. See 29 U.S.C. §
2611(11) (defining “serious health condition” as “an illness . . . that involves . . . inpatient care
. . . or continuing treatment by a health provider”); see also Gordon v. Bd. of Trs. of Governors
State Univ., No. 06-4957, 2007 U.S. Dist. LEXIS 31864, at *8 (N.D. Ill. Apr. 26, 2007) (noting
that the plaintiff “suffered from breast cancer, a serious medical condition”). It required both
inpatient care, during her lumpectomy, and continuing treatment by a health provider. Thus, the
only question is whether her condition rendered her unable to perform the functions of her
position.
To the extent Suchanek’s lumpectomy required her to miss eight days of work, it
prevented her from performing her job functions. See 29 C.F.R. § 825.123 (“An employee who
must be absent from work to receive medical treatment for a serious health condition is
considered to be unable to perform the essential functions of the position during the absence for
treatment.”). Additionally, to the extent Suchanek actually had to miss work to undergo
radiation therapy, those times likely also qualified for leave. See 29 C.F.R. § 825.115(e)(2)
(listing cancer, and treatments such as chemotherapy and radiation, as examples of “a condition
that would likely result in a period of incapacity . . . in the absence of medical intervention or
treatment”). Therefore, Suchanek has established that she was entitled to at least some leave
under the FMLA.
2.
Notice to the Employer
“Nothing in the statute places a duty on an employer to affirmatively grant leave without
such a request or notice by the employee.” Brohm v. Jh Props., 149 F.3d 517, 523 (6th Cir.
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1998). Before taking FMLA leave, an employee must provide notice and a qualifying reason
for taking the leave. Id. The defendants argue that Suchanek never gave notice of her intention
to take FMLA leave; therefore, it was impossible for them to have interfered with her taking
such leave. [Record No. 55, pp. 26–27] However, “an employee is not required to expressly
assert [her] right to take leave under the FMLA.” Perry v. Jaguar of Troy, 353 F.3d 510, 513
(6th Cir. 2003). “The critical question is whether the information imparted to the employer is
sufficient to reasonably apprise it of the employee’s request to take time off for a serious health
condition.” Brohm, 149 F.3d at 523 (quoting Manuel v. Westlake Polymers Corp., 66 F.3d 758,
762 (5th Cir. 1995)).
Suchanek testified that she informed the entire department of both her breast cancer
diagnosis and her need to take medical leave. Shay’s secretary, Anne Marie Shapla, testified that
Shay discussed Suchanek’s diagnosis at a staff meeting and informed the staff that Suchanek
would miss work for treatments. Shay authorized Suchanek to take eight days leave, albeit
temporary disability leave, for her surgery. Suchanek, without question, informed the University
she intended to take some form of leave. She did not, however, mention the FMLA.
Nonetheless, the information she provided was likely sufficient to “reasonably apprise” the
University of Suchanek’s “request to take time off for a serious health condition.” Brohm, 149
F.3d at 523. Thus, she has alleged sufficient evidence to create a genuine issue of material fact
as to the notice element.
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3.
Denial of Rights
Suchanek argues that the University denied her rights under the FMLA because it “failed
to meet the statutory requirements for an employer to provide written notice of rights and
obligations.” [Record No. 64, p. 16] An employer’s failure to comply with the FMLA’s notice
requirements can constitute a denial of rights. See Fink v. Ohio Health Corp., 139 F. App’x 667,
671 (6th Cir. 2005). However, a failure to provide notice only supports an interference claim
when “the inadequate notice effectively interfere[s] with plaintiff’s statutory rights.” Id. (internal
quotations omitted).
The University claims that it adequately provided notice to Suchanek because its FMLA
policies were set out in the employee handbook and available online. [Record No. 55, p. 27]
However, simply providing general notice does not satisfy the full obligation imposed by the
FMLA. Employer notice requirements are outlined in 29 C.F.R. § 825.300. The regulation
requires employers to provide general notice regarding FMLA rights.
See 29 C.F.R.
§ 825.300(a)(3) (requiring that employers include a notice of FMLA rights in employee
handbooks). However, the regulations also require specific, individual notice of rights when
“the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying
reason.” 29 C.F.R. § 825.300(b)(1). While the University provided general notice to its
employees regarding their rights under the FMLA, Suchanek has testified that it failed to
specifically inform her that her leave could qualify for the FMLA. If true, such a failure would
fall short of the FMLA’s statutory notice requirement.
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The question remains whether the University’s failure “effectively interfered” with
Suchanek’s rights. Fink, 139 F. App’x at 671. Suchanek was able to take eight days of leave
for her surgery. And she was fully paid for her period of leave. When her treatment was
complete, she returned to her position without diminution in salary. While Suchanek’s leave was
not technically designated FMLA leave, it is difficult to see what greater rights such a
designation would have provided. See Gordon, 2007 U.S. Dist. LEXIS 31864, at *9–10
(granting summary judgment against FMLA plaintiff when she “received all the medical leave
she requested”); Palmer v. Cacioppo, No. 09-3924, 2011 U.S. App. LEXIS 13503, at *13 (6th
Cir. 2011) (granting summary judgment when the plaintiff had not “demonstrated that the Board
denied any FMLA benefit that she was owed. Indeed, the record reflect[ed] that [she] received
compensation and benefits for her medical absences”). Because Suchanek was provided paid
time off for her medical care, and returned to her same position, she has failed to show that the
University’s inadequate notice deprived her of any rights during her eight-day leave for surgery.
Suchanek also claims that she was denied notice of her right to take intermittent leave for
her radiation treatments. The FMLA does provide for intermittent leave when necessary. See
Davis v. Mich. Bell Tel. Co., 543 F.3d 345, 350–51 (6th Cir. 2008). However, Suchanek
completed her treatments over her lunch hour and, therefore, did not miss work to complete
them. Her actions prove that the treatments did not render her “unable to perform the functions
of the position.” 29 U.S.C. § 2612(a)(1)(D). In other words, Suchanek’s ability to complete the
treatments without missing work indicates that they were not FMLA-qualifying in the first place.
Even if they were, Suchanek has failed to show she suffered a concrete injury as a result of her
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lack of notice. If the University had in fact interfered with Suchanek’s FMLA rights, it would
be liable to her for “wages, salary, employment benefits, or other compensation denied or lost
to such employee by reason of the violation.” 29 U.S.C. § 2617(a)(1)(A)(i)(I). At best,
Suchanek claims the denial caused her to “loose [sic] the benefit of lunch time” and caused her
to “utilize her lunch time for radiation treatment instead of seeking nutrition.” [Record No. 64,
p. 17] In other words, she did not lose any “wages, salary, employment benefits, or other
compensation.” 29 U.S.C. § 2617(a)(1)(A)(i)(I). Having to intermittently utilize lunch hours
to attend medical appointments is not a sufficient injury to sustain an FMLA claim. See Fink,
139 F. App’x at 671 (when plaintiff fails to show concrete injury, she lacks standing to bring an
FMLA claim).
In summary, Suchanek has failed to show that the University’s inadequate notice
“effectively interfered with [her] statutory rights.” Fink, 139 F. App’x at 671. For her FMLAqualifying surgery, Suchanek was provided paid time off and received all benefits she would
have otherwise been entitled to under the statute. With respect to the intermittent leave
following surgery, Suchanek has failed to show that such leave was FMLA-qualifying or that
her ignorance of FMLA rights caused a concrete injury. Thus, Suchanek has failed to make a
prima facie case for FMLA interference, and summary judgment will be granted in favor of the
defendants on this claim.
B.
Disability Discrimination
Suchanek’s second claim alleges that the University, through Shay as its agent,
discriminated against her on the basis of a disability — her breast cancer — in violation of the
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Kentucky Civil Rights Act (“KCRA”), Ky. Rev. Stat. (“KRS”) § 344.040. Under the KCRA,
it is unlawful for an employer to
discharge any individual, or otherwise to discriminate against an individual with
respect to compensation, terms, conditions, or privileges of employment, . . .
because the person is a qualified individual with a disability . . . .
KRS § 344.040(1). The Sixth Circuit has previously explained that “the language of the
Kentucky Civil Rights Act mirrors the language of . . . the Americans with Disabilities Act”
(“ADA”) and, therefore, KCRA cases can be analyzed by reference to the ADA. Brohm, 149
F.3d at 520–21.1
A plaintiff can prove that her employer discriminated against her on the basis of her
disability two different ways: through direct evidence of such discrimination or through
circumstantial evidence following the framework set out in McDonnell Douglas Corp. v. Green,
1
The ADA was substantially amended in 2008 to “broad[en the] scope of protection . . . available
under the [statute].” Pub. L. No. 110-325, § 2, 122 Stat. 3553, 3554. Of particular importance to this case,
the 2008 amendments vastly expanded the definition of “disability.” See 42 U.S.C. § 12102(1)–(4) (2010).
However, for purposes of this case, the Court will look to the pre-amendment version of the ADA.
Suchanek’s claim was brought under the Kentucky Civil Rights Act, which precisely mirrors the ADA’s
former definition of disability. Compare KRS § 344.010(4) with 42 U.S.C. § 12102(2) (2006). The Court
will not assume that the Kentucky legislature, by drafting language in 1992 that mirrored federal law at the
time, see 1992 Ky. Acts 282, § 1, intended to incorporate federal legislative alterations that occurred in 2008.
In fact, the Kentucky legislature amended KRS § 344.040 in 2010, see 2010 Ky. Acts 126, § 3, but did not
update its definition of “disability,” KRS § 344.010(4), to once again mirror the altered federal statute. Thus,
the Court will consider ADA case law for guidance in interpreting the KCRA, see Brohm, 149 F.3d at 520,
but because the relevant Kentucky definitions mirror the pre-amendment ADA definitions, the Court will look
to cases which interpreted the pre-amendment formulation (and thus, for interpretation of the ADA, have been
superseded by the 2008 amendments). See, e.g., Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002). It is
also worth noting that, even if Suchanek had invoked the ADA, the overwhelming majority of the conduct
at issue in this case would be governed by the pre-amendment language. The Sixth Circuit has explained that
the amendments “became effective on January 1, 2009,” but “do[] not apply retroactively to govern conduct
occurring before the[y] became effective.” Millholland v. Summer Cnty. Bd. of Educ., 569 F.3d 562,
565–567. Because Suchanek resigned in April of 2009, just four months after the January 1, 2009 effective
date, most of the conduct complained of (which largely occurred prior to 2009) would be analyzed under the
old ADA provisions in any event. See id.
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411 U.S. 792 (1973). Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1184 (6th Cir. 1996).
Under either test, the plaintiff bears the burden of first establishing that she is “disabled.” See
id. at 1186.
1.
Disability
Suchanek has failed to show that she was disabled. Under the KCRA, an individual is
“disabled” if she has:
(a)
(b)
(c)
A physical or mental impairment that substantially limits one (1) or more
of the major life activities of the individual;
A record of such an impairment; or
[Been] regarded as having such an impairment.
KRS § 344.010(4). Suchanek argues that she qualifies as disabled under both (a) and (c) – i.e.,
that her breast cancer substantially limited her daily activities and she was regarded by Shay as
being disabled. [Record No. 64, p. 18]
As a threshold matter, breast cancer is, without question, an impairment. See Ellison v.
Software Spectrum, Inc., 85 F.3d 187, 190 (5th Cir. 1996) (“It is undisputed that Ellison’s
[breast] cancer was an ‘impairment.’”). However, “[m]erely having an impairment does not
make one disabled for purposes of the ADA.” Toyota, 534 U.S. at 195. One court has explained
that “[b]reast cancer per se is not sufficient to render a person diagnosed with, or suffering from,
said condition automatically disabled.” Maldonado-Ortiz v. Lexus de San Juan, No. 09-1771,
2011 U.S. Dist. LEXIS 36259, at *42–43 (D.P.R. Apr. 4, 2011) (internal citations omitted). In
fact, numerous courts have reached the conclusion that an individual with cancer was not legally
disabled under the ADA. See, e.g., Ellison, 85 F.3d at 191 (concluding that plaintiff with breast
cancer was not disabled); Maldonado-Ortiz, 2011 U.S. Dist. LEXIS 36259, at *45–46 (same);
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McNiff v. Town of Dracut, 433 F. Supp. 2d 145 (D. Mass. 2006) (Plaintiff’s cancer did not
substantially limit major life activity of working and was thus not a “disability” under ADA);
Schertfager v. Boynton Beach, 42 F. Supp. 2d 1347 (S.D. Fla. 1999) (plaintiff with breast cancer
not disabled); Imadjlessi v. Macy’s W., Inc., 993 F. Supp. 736 (N.D. Cal. 1997) (breast cancer
did not substantially limit plaintiff’s ability to work). However, the Court will examine the
unique facts of Suchanek’s impairment and determine whether it qualifies as a disability under
the KCRA.
a.
Substantially limits major life activities
Suchanek argues that her breast cancer and the continuing effects of her treatment
substantially limited her major life activities. In support of this contention, Suchanek lists her
symptoms – a compromised immune system, self-limiting burns, fatigue, nausea, insomnia – and
argues that the symptoms limited her ability to do her job. [Id., pp. 18–19] Suchanek argues that
her doctors’ visits, fatigue, and nausea caused her to miss work, and that as a result of the
combination of symptoms, “she was unable to do her job the same way.” [Id., p. 19] Thus, she
argues that her breast cancer limited the major life activity of working.
The Supreme Court has provided guidance in determining whether an impairment limited
the life activity of working under the pre-amendment ADA. The Court concluded that, at
minimum, the term “substantially limits” requires that “plaintiffs allege they are unable to work
in a broad class of jobs.” Sutton v. United Airlines, Inc., 527 U.S. 471, 491 (1999).
To be substantially limited in the major life activity of working, then, one must
be precluded from more than one type of job, a specialized job, or a particular job
of choice. If jobs utilizing an individual’s skills (but perhaps not his or her unique
talents) are available, one is not precluded from a substantial class of jobs.
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Similarly, if a host of different types of jobs are available, one is not precluded
from a broad range of jobs.
Id. at 492. Put differently, “[t]he inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.” McKay v. Toyota Mfg. U.S.A., Inc.,
110 F.3d 369, 372 (6th Cir. 1997). Suchanek has not pointed to facts in the record sufficient to
raise a genuine issue of material fact as to this theory.
First, Suchanek has failed to make the case that her symptoms preclude her from
performing a broad range of jobs. Suchanek merely argues that “she was disabled because she
was not able to do her job the same way.” [Record No. 64, p. 19 (emphasis added)] Such an
assertion is insufficient to prove that her impairment “substantially limits” her ability to work.
Second, even if the limitations she alleges extended to a broad range of jobs, a “mere
difference” does not amount to a “substantial[] limit[ation].” Albertson’s, Inc. v. Kirkingburg,
527 U.S. 555, 565 (1999). Suchanek has, at best, argued that she was not able to perform her
job in “the same way.” [Record No. 64, p. 19] But not all limitations are “substantial
limitations.” The evidence shows that Suchanek was able to carry her job for more than three
years after her breast cancer diagnosis and treatment.2 After she left the University, Suchanek
took another job as the Director of Stewardship and Development for Mary Queen of the Holy
2
Suchanek argues that she was limited in her job because she often had to leave work early due to
nausea. Rather than help her case, alleging that she consistently missed work would likely prevent her from
carrying her burden and proving that she was “otherwise qualified” to perform the essential functions of her
job. See Shelton v. Charlotte-Mecklenberg Hosp. Auth., No. 05-520, 2006 U.S. Dist. LEXIS 87305, at *16
(W.D.N.C. Nov. 29, 2006) (explaining that a plaintiff who argued that consistent absences proved her
disability instead condemned her case by showing that she could not “perform the essential functions of the
job”); see also Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (employee who
cannot meet the attendance requirements of the job cannot be a “qualified” individual protected by the ADA);
Carr v. Reno, 23 F.3d 525, 529 (D.C. Cir. 1994) (holding that “coming to work regularly” is an “essential
function” under the ADA).
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Rosary Parish. Cf. Smaw v. Va. Dep’t of State Police, 863 F. Supp. 1469, 1475 (E.D. Va. 1994)
(considering claimant’s current employment in determining she was not substantially limited in
the major life activity of working). The evidence shows that she was able to both continue at her
present job and find new employment, and thus she has failed to establish that she was
substantially limited from performing a broad range of jobs.
b.
Regarded as having such an impairment
Suchanek also argues that, if her disability did not substantially limit her daily activities,
she was at least regarded as being disabled by Shay. There is no question that Shay was aware
Suchanek had breast cancer. Further, Suchanek has shown that, at the time of her 2006
evaluation, Shay believed (whether by prompting of Suchanek or on his own) that Suchanek’s
breast cancer affected her work. [Record No. 55-16 (“Jeanne’s work with donors this year did
diminish because of her recovery from breast cancer.”)]
Suchanek has shown that Shay regarded her as having an impairment (breast cancer) and
believed her impairment affected her ability to do her job. But that does not satisfy her burden.
See Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir. 2001); see also Nagel v. Husky Lima
Refinery, No. 09-828, 2011 U.S. Dist. LEXIS 30122, at *20 (N.D. Ohio March 23, 2011)
(finding plaintiff had not shown employer regarded him as disabled, despite testimony from his
supervisor that “Plaintiff was disabled because he could not perform the duties of his job”).
Instead, Suchanek “must show that the employer regarded [her] as disabled within the meaning
of the ADA.” Ross, 237 F.3d at 709 (internal quotations omitted). To meet this standard,
Suchanek must show that Shay either mistakenly believed she had “a physical impairment that
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substantially limit[ed] one or more major life activities” or that he “mistakenly [believed] that
an actual, nonlimiting impairment substantially limit[ed] one or more major life activities.”
Sutton, 527 U.S. at 489. Under either prong, Suchanek has failed to make a sufficient showing.
As previously explained, a substantial limitation on the major life activity of working requires
more than a change in the ability to do a particular job. McKay, 110 F.3d at 372. Suchanek has
not alleged that Shay believed her impairment “substantially limited her in her life activity of
working in a broad class of jobs.” Milholland v. Sumner Cnty. Bd. of Educ., 569 F.3d 562, 568
(6th Cir. 2009). Thus, she has failed to show that Shay regarded her as disabled under the
meaning of the ADA. See Ross, 237 F.3d at 709.
Suchanek has failed to show that she is disabled under the KCRA. Therefore, there is no
genuine issue of material fact as to an essential element of her claim, and summary judgment will
be granted in favor of the defendants on Count Two. See Millholland, 569 F.3d at 568.
C.
Hostile Work Environment and Constructive Discharge
Suchanek alleges two additional claims — hostile work environment and constructive
discharge – under the KCRA. However, given the Court’s conclusion that Suchanek was not
disabled, neither claim can survive.
Kentucky law does not recognize independent claims of hostile work environment or
constructive discharge – they are actionable only through the KCRA. Brooks v. LexingtonFayette Urban Cnty. Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004) (constructive discharge claim
brought through KCRA); Becker v. Saber Mgmt.-Ky., LLC, No. 2009-89, 2009 Ky. App. LEXIS
994 (Ky. App. Nov. 25, 2009) (hostile work environment claims are brought through the
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KCRA). Each is a type of “adverse employment action” under the KCRA. Brooks, 132 S.W.3d
at 807. Thus, a KCRA claim relying on either theory would still require the plaintiff to show
that she was a member of a protected class. KRS § 344.040; see Hafford v. Seidner, 183 F.3d
506, 512 (6th Cir. 1996) (explaining that the first element that must be proved in a civil rights
claim based on a hostile work environment is that the plaintiff “was a member of a protected
class, that is, he was disabled”). Because Suchanek is not legally disabled, she is not a member
of a protected class. Thus, even poor treatment at work would not justify a KCRA claim.
Suchanek’s hostile work environment and constructive discharge claims necessarily fail because
she was not disabled under the KCRA. Summary judgment will also be granted in the
defendants’ favor on Counts Three and Four.
D.
Retaliation
Suchanek also argues that she was retaliated against for filing a complaint with the
University’s Office of Institutional Equity. [Record No. 64, pp. 30–32] Suchanek claims that
she initially spoke with the office in February of 2008 and filed a formal complaint in March of
2008. [Id., p. 31] Suchanek believes that, as a result of filing her complaints, she received
negative performance evaluations and experienced interference in the performance of her job.
[Id.] The alleged interference came through not being invited to development meetings, not
being given information about donors, and the University using an arbitrary procedure to adjust
her job standards. [Id.] While Suchanek alleges a litany of potentially adverse employment
actions, she wholly fails to establish a causal connection between the alleged actions and her
complaint.
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To support a claim for retaliation, a plaintiff must establish that: (1) she engaged in
protected activity; (2) the employer was aware of her protected activity; (3) the employer took
adverse employment action against her; and (4) there was a causal connection between the
protected activity and the adverse employment action. Brooks, 132 S.W.3d at 803; see also
Clark v. Sanofi-Synthelabo, Inc., 489 F. Supp. 2d 759, 767 (W.D. Ky. 2007). The University
has admitted that Suchanek engaged in protected activity by filing a claim with the Office of
Institutional Equity. [Record No. 55, p. 39] Additionally, viewing the evidence in the light most
favorable to her, Suchanek has established a genuine issue of material fact that (i) Shay was
aware of her complaint and (ii) the sum-total of the alleged actions amounted to an adverse
employment action. However, Suchanek has failed to establish a causal connection between the
two.
“To establish a causal connection, a plaintiff must proffer evidence sufficient to raise the
inference that her protected activity was the likely reason for the adverse action.” Dixon v.
Gonzales, 481 F.3d 324, 333 (6th Cir. 2007). Suchanek points to four facts which she alleges
display the causal connection between her complaint and the adverse actions:
(1) the proximity between her initial February 2008 complaint with Human
Resources and her Office of Institutional Equity March 2008 complaint with her
2007 evaluation also signed in March 2008; (2) the fact that she was told she met
goals of the 2008 PIP inferring a satisfactory job performance but then given a
less than satisfactory (3.0 rating) on the 2008 evaluation in February 2009; (3) the
hostile conduct of Shay on an interpersonal level (i.e. yelling, pointing fingers and
charging, and slamming fist on the table); and (4) reference to her complaint and
allegations of retaliation in a letter dated July 14, 2008.
[Record No. 64, pp. 31–32] The second and third points – while describing what could be
construed as adverse actions – provide no information whatsoever to connect those actions to
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Suchanek’s discrimination complaint. See Keeling v. Horizons Youth Servs., No. 10-23, 2011
U.S. Dist. LEXIS 72061, at *10 (E.D. Ky. July 5, 2011) (granting summary judgment when
plaintiff “discuss[ed] events that occurred between [the] filing of [his] EEOC claim and
termination, without explanation or argument as to how the two might be related”).]
Suchanek’s first asserted“causal connection” (i.e., the proximity between her complaint
and a poor evaluation) is unpersuasive. First, “temporal proximity itself is insufficient to find
a causal connection.” Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 737 (6th Cir.
2006). Second, in this case, the temporal proximity provides almost no weight for Suchanek’s
claims. Campus-wide evaluations were due in March 2008. [See Record No. 55-21, p. 6 (letter
from Dean Shay explaining that by March 24, 2008, Suchanek’s evaluation was already late)]
Thus, the temporal proximity between Suchanek’s poor evaluation and her complaint resulted
from the University’s schedule, not a nefarious motive. Third, the March 2008 evaluation was
not Suchanek’s first (or last) poor performance evaluation. It is difficult to accept Suchanek’s
argument that the poor evaluation was retaliation for her discrimination complaint when the
preceding evaluation (for 2006) was also negative. Under these facts, the March 2008 evaluation
was a step in Suchanek’s progressively worsening evaluations; it was not an outlier that would
have been uniquely motivated by her complaint. Therefore, the temporal proximity between
Suchanek’s complaint and her March 2008 evaluation fails to establish the requisite causal
connection.
Finally, reference to the July 14, 2008, letter is likewise unavailing. In Shay’s letter to
Suchanek, he wrote:
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There are 3 items that you raised (in writing) in your response to the PIP that I
need to address. The first is your continued reference to my alleged “retaliation”
which you peppered throughout the PIP. I must take this opportunity to point out
that you misquoted and took out of context what I noted relative to your medical
situation in your 2006 Performance Evaluation. But more importantly, at your
request, Patty Bender has investigated your accusation and has found no basis in
your claim. If you feel the need to further pursue this issue, please get back in
touch with Patty Bender but do not continue to refer to it in any correspondence
with me.
[Record No. 55-24] It is unclear precisely how Suchanek believes this statement displays a
causal connection between her complaint to the Office of Institutional Equity and the adverse
actions she alleges. At best, it satisfies the second element of a retaliation analysis: that Shay
was aware of Suchanek’s protected activity. See Brooks, 132 S.W.3d at 803. However, when
taken in context, this statement merely illustrates that Suchanek had already accused Shay of
“retaliation,” and her accusations had been investigated and dismissed. It provides no basis to
conclude that later actions were retaliation for Suchanek’s complaint.
Suchanek has failed to establish a causal connection between the alleged adverse
employment actions and her protected activity. Because she has failed to establish this element,
her prima facie case of retaliation cannot proceed and the Court will grant summary judgment
to the defendants on Count Five.
E.
Breach of Implied Contract
Next, Suchanek alleges that the University breached an implied contract by altering her
job and evaluation standards without following the protocol for such changes outlined in the
University’s employment manual. [See Record No. 64, p. 32–33] More specifically, Suchanek
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claims that Shay violated Human Resources Policy and Procedure Number 61.0, which provides
in part (under the heading “Performance Evaluation”):
Evaluation is an ongoing process that results in a year-end review. A midyear
review is optional.
1) The first two steps of a [Performance Evaluation] involve a review of the
following:
a. The employee’s performance during the last review period as conducted
by the supervisor; and
b. The essential functions of the position held by the employee and the
amount of time spent performing each function of the job. This will be
conducted jointly by the employee and the supervisor. If changes are
necessary, adjustments to the Job Analysis Questionnaire (JAQ) for the
position will be made.
[See Record No. 55-22] Suchanek argues that the Defendants violated this policy by changing
her job standards without changing her JAQ. [Record No. 64, p. 33]
Under Kentucky law, “an express personnel policy can become a binding contract ‘once
it is accepted by the employee through [her] continuing to work when [s]he is not required to do
so.’” Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 362 (Ky. 2005) (quoting Hoffman-La
Roche, Inc. v. Campbell, 512 So. 2d 725, 733 (Ala. 1987)). The Kentucky Supreme Court has
explained that the “principle is akin to estoppel. Once an employer establishes an express
personnel policy and the employee continues to work while the policy remains in effect, the
policy is deemed an implied contract for so long as it remains in effect.” Parts Depot, Inc., 170
S.W.3d at 363.
Suchanek’s implied-contract claim fails for a number of reasons. First, she fails to allege
precisely how Shay and the University changed her job standards. On a motion for summary
judgment, the nonmoving party “must point to affirmative evidence on critical issues sufficient
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to allow a jury to return a verdict in its favor.” Wimbush v. Wyeth, 619 F.3d 632, 638 n.4 (6th
Cir. 2010). It is not the Court’s duty to “search the entire record” to find evidence which creates
a genuine issue of fact. Id. (internal quotations omitted). Thus, simply alleging that the
Defendants violated policy “by not changing her JAQ before requiring new standards,” [Record
No. 64, p. 33] without specifically describing the change in standards, is insufficient to survive
summary judgment.
Second, even after a review of the record, it does not appear that the University breached
its policy. Suchanek seems to be arguing that Shay held her to progressively higher standards
as their relationship soured. However, Policy 61.0 distinguishes between job standards and
essential job functions. [See Record No. 55-22, p. 1] Policy 61.0 requires an amended JAQ to
change the essential functions of a position, but does not require the same procedure to alter
standards. This point is further supported by the fact that the University’s JAQ for the position
only lays out the essential job functions, not the standards for evaluating completion of those
functions. [Record No. 55-5, p. 21] Thus, the record does not support Suchanek’s claim that
the University could not update her job standards without altering her JAQ. From the beginning,
“fund raising” was an essential job function for Suchanek. [Id.] Suchanek was evaluated, even
in 2008, on her performance in fund raising. Even if Policy 61.0 created an implied contract, it
did not require the University to alter Suchanek’s JAQ in order to raise its standards for her
performance in fund raising. Therefore, the University did not breach an implied contract with
Suchanek.
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F.
Intentional Infliction of Emotional Distress
Suchanek’s claim for intentional infliction of emotional distress also fails as a matter of
law. Under Kentucky law, a plaintiff cannot assert a claim for intentional infliction of emotional
distress for the same conduct that gave rise to a KCRA claim. The KCRA permits recovery for
emotional damages such as humiliation and embarrassment. See McNeal v. Armour & Co., 660
S.W.2d 957, 958–59 (Ky. App. 1983); see also Mitchell v. Seaboard S. R.R., 883 F.2d 451, 454
(6th Cir. 1989) (explaining that the KCRA authorizes recovery for “damages for humiliation and
emotional distress”). “Under Kentucky law, when damages for emotional distress are available
through a traditional state tort claim, and the conduct was not intended only to cause extreme
emotional distress, an emotional distress claim will not lie.” Messick v. Toyota Motor Mfg., Inc.,
45 F. Supp. 2d 578, 582 (E.D. Ky. 1999) (citing Rigazio v. Archdiocese of Louisville, 853
S.W.2d 295, 299 (Ky. App. 1993)). Because Suchanek asserted a KCRA claim – which allows
her to recover for emotional damages – against the University based on the same conduct that
underlies the present claim, her intentional infliction of emotional distress claim against the
University fails. However, Suchanek correctly responds that the KCRA does not impose
individual liability for employment discrimination. See Effinger v. Phillip Morris, Inc., 984 F.
Supp. 1043, 1045–46 (W.D. Ky. 1997) (citing Winston v. Hardee’s Food Sys., Inc., 903 F. Supp.
1151, 1155 (W.D. Ky. 1995)). Therefore, her intentional infliction claim against Shay in his
individual capacity would not be subsumed by her KCRA claim.
Nevertheless, Suchanek has failed to establish a prima facie case of intentional infliction
of emotional distress against Shay. To support a claim of outrage, or intentional infliction of
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emotional distress, a plaintiff must establish that (1) the wrongdoer’s conduct is intentional or
reckless; (2) the conduct is outrageous and intolerable in that it offends the generally accepted
standards of decency and morality; (3) there is a causal connection between the wrongdoer’s
conduct and the emotional distress; and (4) the distress suffered must be severe. Osborne v.
Payne, 31 S.W.3d 911, 913–14 (Ky. 2000). Kentucky courts have set a high bar for conduct to
be outrageous and intolerable. A claim cannot succeed based on “petty insults, unkind words,
and minor indignities.” Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996). Nor will the
tort compensate behavior that is merely “cold, callous, and lacking in sensitivity.” Humana of
Ky., Inc. v. Seitz, 796 S.W.2d 1, 4 (Ky. 1990). To satisfy this burden, a plaintiff must allege
behavior that is “beyond all decency.” Id.
Suchanek claims that Shay slammed his fists on the desk, pointed his finger and lunged
at her, and raised his voice to yell at her. [Record No. 64, p. 34] Even if true, these assertions
show, at worst, a “lack of compassion” and poor management, but certainly do not rise to the
level of seriousness required by Osborne, Kroger, and Seitz. Seitz, 796 S.W.2d at 4. Shay’s
actions may have been callous and unwarranted, but are not, as a matter of law, “beyond all
decency.” Id. Therefore, Suchanek’s claim for intentional infliction of emotional distress also
fails.
IV.
Conclusion
Suchanek has failed to present a prima facie case regarding any of her seven claims. She
has not shown that she was denied a right under the FMLA, that she was disabled under the
KCRA, or that there was a causal connection between her employment complaint and the
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defendants’ actions. She has also failed to show that the University violated an implied contract
or assert evidence sufficient to support a claim for intentional infliction of emotional distress.
Accordingly, it is hereby
ORDERED as follows:
1.
That the defendants’ Motion for Summary Judgment [Record No. 55] is
GRANTED.
2.
The defendants’ pending Motion in Limine [Record No. 78] is DENIED as moot.
3.
The pretrial conference and trial dates are VACATED and CANCELED.
4.
A separate judgment will be entered this date in favor of Defendants University
of Kentucky and Robert Shay, in his official and individual capacities.
This 25th day of July, 2011.
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