Cunnigham v. Humana, Inc.
Filing
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MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 9/9/11; IT IS HEREBY ORDERED that HICs motion for summary judgment on Plaintiffsfailure to accommodate claim is SUSTAINED and that claim is DISMISSED WITH PREJUDICE;This is a final order.cc:counsel (JSS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:10-CV-56-H
TAMARAH CUNNINGHAM
PLAINTIFF
V.
HUMANA INSURANCE COMPANY
DEFENDANT
MEMORANDUM OPINION AND ORDER
In a previous opinion, the Court dismissed Plaintiff’s disability discrimination and
retaliation Kentucky Civil Rights Act (“KCRA”) claims and interference and retaliation Family
and Medical Leave Act (“FMLA”) claims. Defendant also moved for summary judgment on
Plaintiff’s claim that Humana Insurance Company (“HIC”) failed to accommodate her disability
in violation of the KCRA. The Court will now consider that motion.
I.
In its previous opinion, the Court provided detailed facts of the employment relationship
between Cunningham and HIC. Plaintiff began employment with Defendant HIC in December
of 2006 in a data entry position. Plaintiff had problems meeting the performance standards for
her data entry position as measured in terms of speed and accuracy. Defendant documented her
performance issues in performance evaluations in 2007 and 2008. Ultimately, in August 2009,
due to repeated low performance scores, Defendant required Plaintiff to complete a Competency
& Contribution Improvement Plan (“CCIP”). As part of the CCIP, Plaintiff met weekly with
supervisors at HIC to improve her speed and accuracy. Plaintiff agrees that most of these
meetings occurred, but feels she did not receive any training or coaching during the meetings.
Shortly before beginning work for HIC, Plaintiff had been diagnosed with Multiple
Sclerosis (“MS”). During the course of her employment, she took multiple leaves in order to
recuperate from MS flares. Several times Defendant allowed Plaintiff to return to work on a
part-time schedule, slowly progressing to full-time work. She was given a parking spot close to
the building in which she worked. The close parking space was allowed for six weeks. After
that, Plaintiff had to park in a garage one block away and walk to work or take a city bus at
Defendant’s expense that dropped off at the door of her building. Plaintiff asked to be allowed
to park closer to her building for longer then six weeks, but HIC denied this request.
Plaintiff claims to have repeatedly asked for training to improve her performance while
coping with the effects of MS. Plaintiff also asked, at some point during her employment, to be
given a different job with lower or no performance standards or to be held to a lower
performance standard in her current position. Plaintiff interviewed for another position at HIC
but did not receive the job because she lacked qualifications. HIC temporarily reassigned
Plaintiff to entering identification card and change-of-address data, but Plaintiff was unable to
meet the performance standards of this job.
II.
Summary judgment is appropriate when “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). A genuine
dispute exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “On summary
judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light
most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654,
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655 (1962). While the moving party must demonstrate that no genuine issue of material fact
exists, in response, the non-moving party must move beyond the pleadings and present evidence
in support of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Conclusory
assertions, supported only by Plaintiff’s own opinions, cannot withstand a motion for summary
judgment.” Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008). As with a plaintiff
under the Americans with Disabilities Act (ADA),1 a KCRA plaintiff’s response to a summary
judgment motion must show there is a genuine issue of material fact as to each element of her
prima facie case and that the defendant’s nondiscriminatory explanation for the employment
action, if any, is pretextual. Whitfield v. Tennessee, 639 F.3d 253, 259-60 (6th Cir. 2011) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)).
III.
The elements of a prima facie failure-to-accommodate claim are: (1) Plaintiff is disabled,
(2) Plaintiff is otherwise qualified for the position, with or without reasonable accommodation;
(3) Defendant knew or had reason to know about Plaintiff’s disability; (4) Plaintiff requested an
accommodation; and (5) Defendant failed to provide the accommodation. Myers v. Cuyahoga
Cnty., Ohio, 182 Fed. App’x 510, 515 (6th Cir. 2006) (citing DiCarlo v. Potter, 358 F.3d 408,
419 (6th Cir. 2004)).2 The parties dispute whether Plaintiff is disabled. The Court is cognizant
1
Claims under the KCRA are analyzed similarly to claims under the ADA. See Howard Baer, Inc. v.
Schave, 127 S.W.3d 589, 592 (Ky. 2003).
2
While the elements of a prima facie case of disability discrimination are frequently cited, the elements of a
prima facie case of discrimination based on failure to accommodate are less frequently utilized. The Sixth Circuit in
Myers looked to the elements of a failure to accommodate claim under the Rehabilitation Act as outlined in DiCarlo.
The main difference between the elements of a prima facie case under the ADA as opposed to the Rehabilitation Act
is element four. Regardless, numerous Sixth Circuit cases have stated that the plaintiff must have requested an
accommodation. See, e.g., Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir. 1997) (quoting Monette, 90 F.3d at
1183).
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that the evidence may not support Plaintiff as disabled under the KCRA.
As with its federal counterpart, the KCRA defines “disability” as “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 being regarded as having such an impairment.” KY. Rev.
Stat. Ann. § 344.010(4) (West, Westlaw through 2011 session); see also 42 U.S.C. § 12102(1)
(2009). This definition requires more than a diagnosis of a potentially debilitating disease; the
individual must actually suffer an impairment that substantially limits a major life activity. See,
e.g., Bryson v. Regis Corp., 498 F.3d 561, 575-76 (6th Cir. 2007) (finding plaintiff with reflex
sympathetic dystrophy condition after corrective knee surgery failed to produce evidence she
was substantially limited in a major life activity under KCRA); see also Turner v. Sullivan Univ.
Sys., Inc., 420 F.Supp.2d 773, 783-84 (W.D.Ky. 2006) (finding plaintiff who had cancer and
restrictions on her ability to lift objects was not disabled under the KCRA); and McPherson v.
Fed. Express Corp., 241 F.App’x 277, 282-83 (6th Cir. 2007) (finding plaintiff’s insulindependent diabetes did not substantially limit a major life activity). Examples of major life
activities include walking, breathing, seeing, hearing, speaking, performing manual tasks and
caring for oneself. Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003) (listing
examples of major life activities that must be impaired); see also 29 C.F.R. § 1630.2 (2011).
The major life activity must be substantially limited, meaning the individual must be
“significantly restricted as to the condition, manner, or duration under which [she] can perform a
particular major life activity as compared to...the average person in the general population.”
Turner, 420 F.Supp.2d at 783 (quoting 29 C.F.R. § 1630.2(j)(1)).
Simply asserting a MS diagnosis will not establish a disability. Plaintiff must also show
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the disease substantially limited a major life activity. See, e.g., Croy v. Cobe Labs., Inc., 345
F.3d 1199, 1204 (10th Cir. 2003) (finding plaintiff suffering symptoms of MS to the point of
having to take unscheduled work absences was not disabled under the ADA); Nyrop v. Indep.
Sch. Dist. No. 11, 66 F.3d 728, 735 (8th Cir. 2010) (finding plaintiff with “MS-related
impairments and physical symptoms” did not have a disability under the ADA); but cf.
Braunling v. Countrywide Home Loans, 220 F.3d 1154, 1157 (9th Cir. 2000) (finding plaintiff
suffering debilitating consequences of MS qualified as disabled).
The Court finds no evidence of a particular major life activity that Plaintiff cannot
perform. As to walking, Plaintiff has not asserted the degree to which she has difficulty. If
“concentration” were to qualify, Plaintiff has not demonstrated by evidence an inability in that
area. All in all, in this fundamental area of the claim, Plaintiff’s evidence seems absent.
IV.
Regardless, Plaintiff must request that Defendant make “reasonable accommodations”
and show that Plaintiff is “otherwise qualified” for her position at HIC. See KY. Rev. Stat. Ann.
§ 344.030; see also 42 U.SC. § 12111(8)-(9). These two elements are interrelated. Determining
whether a person is “otherwise qualified for the position with or without reasonable
accommodation” will depend on whether the accommodation requested, if any, is reasonable in
the first place. Jakubowski v. Christ Hosp. Inc., 627 F.3d 195, 202 (6th Cir. 2010). Plaintiff has
the burden of requesting an accommodation that: (1) is reasonable; and (2) will allow her to
perform the essential functions of her job. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173,
1183-4 (6th Cir. 1996) (“[T]he disabled individual bears the initial burden of proposing an
accommodation and showing that that accommodation is objectively reasonable...[and] that he or
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she is capable of performing the essential functions of the job with the proposed
accommodation.”).
Plaintiff has relied upon four different accommodation requests: a parking place closer to
work for longer than six weeks; a lower speed and accuracy performance standard; moving to a
job with less rigorous standards; and training, or at least more or effective training.3 There are
many difficulties with these accommodation requests. Plaintiff provides few details of her actual
requests and fails to explain how each accommodation would allow her to perform essential job
functions. Furthermore, some of these requests are not reasonable.
A.
The Court will assume that Plaintiff requested she be given a parking spot close to her
office building for longer than six weeks, though the record does not specify when or to whom
she made such a request. HIC did provide a parking space close to the building for two six-week
periods, after which Plaintiff had free bus transportation available to her to take her from the
parking garage to the front door of the building in which she worked. Plaintiff did not arrive for
work late, and she was not terminated or disciplined for tardiness or any behavior related to her
commute into or from work. Plaintiff has not shown that provision of the parking space would
render her capable of performing the essential functions of her position. Monette, 90 F.3d at
1183. Therefore, a closer parking space was not required as an accommodation to
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Plaintiff did not argue that she should have been given a different position in her response to the summary
judgment motion. However, she did speak about this accommodation in her deposition and Defendant argued why it
is not liable for failure to accommodate based on being reassigned to a job without standards. Therefore, the Court
will address HIC’s responsibilities to reassign a disabled employee. Furthermore, Plaintiff did not specifically
respond to summary judgment on the failure-to-accommodate claim at all. However, Plaintiff seemed to incorporate
some of this claim into other claims in her response and the Court will therefore not conclude that Plaintiff
abandoned this claim.
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Cunningham’s disability and the failure to provide it was not a failure to accommodate
Plaintiff’s disability under the KCRA.
B.
Plaintiff also suggests she should have been held to lower performance standards, at least
when she was recuperating from an MS flare.4 Assuming Plaintiff actually requested lower
performance standards on account of her disability, lowering performance standards integral to
the job position is not a reasonable accommodation under the KCRA. To make out a failure-toaccommodate claim, Plaintiff must show that Defendant denied an accommodation that would
have allowed her to adequately perform essential job functions. Ky. Rev. Stat. Ann. §
344.030(6). Instead, what Plaintiff has requested is not an accommodation, but an alteration of
the essential job functions. The KCRA does not require an employer to change the essential job
functions based on an employee’s disability. See id. Asking for lower performance standards is
not a request for a reasonable accommodation.
C.
In her deposition, Plaintiff states she asked “[t]he supervisor, his boss” to be moved to a
job with less rigorous standards.5 Cunningham Dep. 105, line 8. A reassignment to a vacant
position can qualify as a reasonable accommodation under the KCRA. Ky. Rev. Stat. Ann. §
344.030(6). An employer has a duty to consider transferring a disabled employee to a position
for which that employee is qualified. Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 257-58
4
The Court notes that Defendant granted Plaintiff requested leave during her MS flares and that Plaintiff’s
inability to meet performance standards was not limited to periods in which she suffered MS flares.
5
It is unclear in this part of the deposition if Plaintiff was asking for a different position or to be held to
lower standards. The Court will assume, for the purposes of summary judgment that Plaintiff requested both of these
accommodations.
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(6th Cir. 2000). However, Plaintiff must show she requested, and Defendant denied, such a
transfer to recover on a failure-to-accommodate theory of discrimination. Id. The employer is
not required to reassign a disabled employee to a position for which she is not otherwise
qualified, to waive legitimate employment policies, or to subvert the rights of other employees to
accommodate the disabled employee. Id. at 257. To be qualified for a reassignment, “the
[disabled] employee must ‘satisfy the legitimate prerequisites for that alternative position,
and...be able to perform the essential functions of that position with or without reasonable
accommodation.’” Id. at 258 (quoting Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 678
(7th Cir. 1998)).
Here, Cunningham has not shown that HIC denied her a requested transfer to a vacant
position for which she was qualified. HIC temporarily gave her different duties–change of
address and ID card duties–but she could not meet the standards of those jobs either. Plaintiff
applied for several positions within HIC, was interviewed for one, but admits she was not
qualified for that job. Therefore, HIC was not obliged to reassign her to those positions as a
reasonable accommodation. Plaintiff has not identified any other vacant positions for which she
was qualified and that Defendant denied her. Thus, these facts do not support a failure-toaccommodate claim.
D.
Finally, Plaintiff states that she repeatedly asked for training to help her better perform
her job given the physical and mental effects of MS. In her deposition, Plaintiff does not
indicate when or to whom these requests were made. Assuming that Plaintiff made such
requests, HIC claims to have provided the requested training in the weekly meetings between
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Plaintiff and her supervisor. Though Plaintiff agrees that these meetings occurred, she felt they
were mere conversations, including feedback of her performance, but not training.
Again, Plaintiff has failed to show how the service she has requested would
accommodate her disability and allow her to perform essential job functions. The Sixth Circuit
has not directly addressed the issue. However, Judge Richard Posner has commented
thoughtfully that the ADA does not require employers to offer special training to disabled
employees. Williams v. United Ins. Co. of Am., 253 F.3d 280 (7th Cir. 2001). He rejected the
plaintiff’s contention that the ADA required her employer to provide her with “special training,
not offered to nondisabled employees, to enable her to qualify” for the desired job, as the burden
placed on employers “would be excessive and is not envisaged or required by the Act.” Id. at
282-83. Judge Posner explains in the opinion that “[t]he duty of reasonable accommodation may
require the employer to reconfigure the workplace to enable a disabled worker to cope with her
disability, but it does not require the employer to reconfigure the disabled worker.” Id. at 283.
This Court agrees with Judge Posner’s approach.
Here, Plaintiff wanted training beyond that which HIC provided in the CCIP to help her
meet the performance standards of her position. HIC did not provide additional training beyond
that offered in the CCIP to other employees, nor does Plaintiff indicate how her proposed
training would address her disability to enable her to meet the essential job functions of her
position. To be sure, more training would likely make her faster and more accurate in entering
data. But such training would improve Cunningham’s job skills as it would for any employee–it
would not address anything specific to Cunningham’s disability. Like the ADA, the KCRA does
not require employers to improve the general job skills of disabled employees to make them
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qualified for certain jobs. This is the essence of the “otherwise qualified” requirement. Ky. Rev.
Stat. Ann. § 344.030(1); see also Monette, 90 F.3d at 1186. Thus, the additional training
Plaintiff requested was not a reasonable accommodation and Defendant’s decision not to provide
such training did not violate the KCRA.
V.
Even had Plaintiff made out a prima facie claim, Plaintiff would still have the burden at
trial of proving that Defendant’s non-discriminatory explanation for termination–that
Cunningham repeatedly failed to meet the performance standards applied to all employees in her
job position–was pretextual. Whitfield, 639 F.3d at 259 (6th Cir. 2011) (citing McDonnell
Douglas, 411 U.S. at 802-04). As an essential element to her case, Plaintiff has the burden at
summary judgment to show a genuine issue of material fact as to the issue of pretext. Id. at 260
(citing Celotex, 477 U.S. at 322); see also Jones v. Potter, 488 F.3d 397, 408 (6th Cir. 2007).
Plaintiff has presented no evidence whatsoever of a pretext. Being otherwise sufficiently
advised,
IT IS HEREBY ORDERED that HIC’s motion for summary judgment on Plaintiff’s
failure to accommodate claim is SUSTAINED and that claim is DISMISSED WITH
PREJUDICE.
This is a final order.
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September 9, 2011
cc:
Counsel of Record
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