Green et al v. Woodhaven Country Club, Inc

Filing 10

MEMORANDUM OPINION & ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge Thomas B. Russell on 12/19/2013. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:13-CV-00318-TBR
Plaintiffs

BETHENY GREEN and
RICHARD MICHAELS
v.
WOODHAVEN COUNTY CLUB, INC.

Defendant

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant Woodhaven County Club, Inc.’s
Motion to Dismiss. (Docket No. 5.) Plaintiffs Betheny Green and Richard Michaels
have responded. (Docket No. 8.) Defendant has replied. (Docket No. 9.) This matter
is now fully briefed and ripe for adjudication. For the following reasons and consistent
with the below opinion, the Court will GRANT in part and DENY in part Defendant’s
Motion to Dismiss.
STANDARD
The Federal Rules of Civil Procedure require that pleadings, including
complaints, contain a “short plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). A defendant may move to dismiss a claim or
case because the complaint fails to “state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b). When considering a Rule 12(b)(6) motion to dismiss, the court
must presume all of the factual allegations in the complaint are true and draw all
reasonable inferences in favor of the non-moving party.
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Total Benefits Planning

Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008)
(citing Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). “The
court need not, however, accept unwarranted factual inferences.” Id. (citing Morgan v.
Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).
Even though a “complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (citations omitted).

Instead, the plaintiff’s “[f]actual

allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Id. (citations omitted). A complaint should contain enough facts “to state a claim to
relief that is plausible on its face.” Id. at 570. A claim becomes plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). If, from the well-pleaded facts,
the court cannot “infer more than the mere possibility of misconduct, the complaint has
alleged - but has not ‘show[n]’ - ‘that the pleader is entitled to relief.’” Id. at 1950
(citing Fed. R. Civ. P. 8(a)(2)). “Only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id.
DISCUSSION
Plaintiffs’ Complaint, (Docket No. 1), has two counts.

Count One alleges

discrimination and retaliation in response to Plaintiffs exercising their rights under the
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Family and Medical Leave Act (FMLA). Count Two alleges disability discrimination in
violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112, and the
Kentucky Civil Rights Act (KCRA), Ky. Rev. Stat. (KRS) § 344.040. Defendant has
not moved to dismiss Count One of Plaintiffs’ Complaint; instead Defendant’s Motion
to Dismiss, (Docket No. 5), focuses exclusively on Count Two. Therefore, Plaintiffs’
claims under Count One of the Complaint will remain.
Defendant raises three arguments for why the Court should dismiss Plaintiffs’
claims under Count Two for disability discrimination. First, Defendant argues that the
Court lacks subject matter jurisdiction because Plaintiffs have failed to exhaust their
administrative remedies. Second, Defendant argues that Plaintiffs’ claims under Count
Two are time-barred. Third, Defendant argues that Plaintiffs’ physical impairments, as
alleged, do not constitute a disability as a matter of law as defined by KRS § 344.
ADA Claims
Plaintiff concedes that claimants asserting violation of the ADA must file an
Equal Employment Opportunity Commission (EEOC) charge in order to establish relief
under that federal statute. In their response, Plaintiffs state, “Insofar as Plaintiffs’
Complaint prays for relief for violations of the ADA, Plaintiff hereby voluntarily
remands these requests.” (Docket No. 8, Page 4.) Accordingly, the Court will GRANT
Defendant’s Motion to Dismiss as to claims asserted for violation of the ADA.
KCRA Claims
The Court finds Plaintiffs have properly alleged facts making their claims of
disability discrimination plausible. “In order to establish a prima facie case of
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discrimination based on a disability, the plaintiff must show: (1) that he had a disability
as that term is used under the statute; (2) that he was ‘otherwise qualified’ to perform
the requirements of the job, with or without reasonable accommodation; and (3) that he
suffered an adverse employment decision because of the disability.” Hallahan v. The
Courier-Journal, 138 S.W.3d 699, 706-07 (Ky. Ct. App. 2004) (citations omitted). In
interpreting the KCRA, Kentucky courts look to federal precedent interpreting federal
civil rights statues such as the ADA. Howard Baer, Inc. v. Schave, 127 S.W.3d 589,
591-92 (Ky. 2003) (noting that “[t]he Kentucky Civil Rights Act was modeled after
federal law, and our courts have interpreted the Kentucky Act consistently therewith” to
conclude “we deem it appropriate to follow federal precedent”); Hallahan, 138 S.W.3d
at 705 (“Given similar language and the stated purpose of KRS Chapter 344 to embody
the federal civil rights statutes, including the Americans with Disabilities Act (ADA),
this court may look to federal case law in interpreting the Kentucky Civil Rights Act
with respect to Hallahan’s claim of disability discrimination under KRS 344.040.”).
1. Disability as That Term is Used Under the Statute
Kentucky Revised Statute § 344.010(4) defines “disability” as:
(a) A physical or mental impairment that substantially limits
one (1) or more of the major life activities of the individual;
(b) A record of such an impairment; or
(c) Being regarded as having such an impairment.
The term “substantially limits” is to “be construed broadly in favor of expansive
coverage” and is “not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1).
An impairment is a disability if it “substantially limits the ability of an individual to
perform a major life activity as compared to most people in the general population.” Id.
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However, it “need not prevent, or significantly or severely restrict, the individual from
performing a major life activity in order to be considered substantially limiting.” Id.
The nature and severity of the impairment, the duration or expected duration of the
impairment, and the permanent or long-term impact or expected permanent or long-term
impact of or resulting from the impairment are factors to be considered in determining
whether an individual is substantially limited in a major life activity. Howard Baer, 127
S.W.3d at 593.

“Examples of ‘major life activities include, among other things,

walking, seeing, hearing, performing manual tasks, caring for oneself, speaking,
breathing, learning, and working.’” Brown v. Humana Ins. Co., 942 F. Supp. 2d 723
(W.D. Ky. 2013) (citation omitted).
Kentucky Revised Statute § 344.030, defines a “qualified individual with a
disability” as follows:
“Qualified individual with a disability” means an individual with a
disability as defined in KRS 344.010 who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that the individual holds or desires unless
an employer demonstrates that he is unable to reasonably
accommodate an employee's or prospective employee's disability
without undue hardship on the conduct of the employers' business.
Consideration shall be given to the employer's judgment as to what
functions of a job are essential, and if an employer has prepared a
written description before advertising or interviewing applicants
for the job, this description shall be considered evidence of the
essential functions of the job.
Finally, KRS § 344.040(1)(a) makes it unlawful for an employer to discriminate against
a qualified individual with a disability:
(1) It is an unlawful practice for an employer:
(a) To fail or refuse to hire, or to discharge any individual, or
otherwise to discriminate against an individual with
respect to compensation, terms, conditions, or privileges of
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employment, because of the individual's race, color,
religion, national origin, sex, age forty (40) and over,
because the person is a qualified individual with a
disability, or because the individual is a smoker or
nonsmoker, as long as the person complies with any
workplace policy concerning smoking;
Defendant argues Plaintiffs’ allegations cannot support a finding that either
Plaintiff has an “impairment that substantially limits” a “major life activity” as defined
by KRS §§ 344.010 and 344.030. Specifically, Defendant argues Plaintiffs’ claims are
merely conclusory statements and “formulaic recitations” of the elements within the
disability definition, which is insufficient to meet the pleading standards of Fed. R. Civ.
P. 8(a). Plaintiffs claim there is substantial statutory and judicial precedent establishing
their alleged physical impairments as substantially limiting major life activities and,
therefore, as statutory disabilities. Accordingly, Plaintiffs claim that their Complaint
properly alleges facts upon which the Court may draw a plausible inference as to
Defendant’s liability.
(a) Plaintiff Green
Green was a salaried Woodhaven Country Club manager responsible for
marketing. (Docket No. 1, ¶ 11.) Plaintiffs make the following allegations with respect
to Green’s alleged disability:
Both Plaintiffs suffer from a physical impairment that substantially
limits one or more major life activities, have a record of such
impairment, and were regarded and perceived by Defendant as
having such an impairment.
Plaintiff Green suffers from debilitating endometriosis which have
required at least 12 prior gynecological surgeries in the last 17
years.

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That on or around July, 2012, Plaintiff Green was informed by her
doctor that she would need to undergo a hysterectomy as a result of
her medical history of significant endometriosis and two leaking
cysts. The surgery was scheduled for August 9, 2012, and Plaintiff
Green informed every member of Woodhaven’s management team
of the date of the upcoming procedure and the necessity of six
weeks of recovery time, a period in which she would be unable to
work.
That immediately after learning of the need for extended time off
to address her serious medical condition and physical impairment,
Chance Maguire, Woodhaven’s general manager and Plaintiff
Green’s direct supervisor, began to treat her much differently and
much more negatively then he had immediately prior to learning of
her medical condition. For instance, Mr. Maguire stopped
responding to any of Ms. Green’s emails and discontinued their
weekly meeting, which had been ongoing throughout Plaintiff’s
employment, without explanation.
On or about August 7, 2012, two days before the scheduled
surgery, Mr. Maguire informed Plaintiff Green that her
employment was terminated due to the upcoming procedure and
because he didn’t know how long Ms. Green would be off work
and that someone needed to do her job. When Plaintiff Green
objected to this decision and her unfair treatment, Mr. Maguire
shouted “you’re fired!”
(Docket No. 1, ¶¶ 9, 12, 13, 15.) Defendant argues that under the disability definition in
§ 344.010 “the plaintiff must identify one or more appropriate major life activities; and
plaintiff must show that the impairment substantially limits one or more of those
activities.” Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1129 (10th Cir. 2003).
Defendant argues Plaintiff Green has not alleged an impairment of a major life activity
other than through bare, conclusory allegations.
The Court notes Plaintiff Green did not explicitly identify a particular major life
activity substantially limited by her impairment; however in Plaintiffs’ Response to
Defendant’s Motion to Dismiss she made clear the major life activity alleged to be
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substantially limited is “working.” Defendant correctly points out that Green did not
make any allegations concerning how the impairment substantially limits her ability to
work as compared to most people in the general population.

See 29 C.F.R. §

1630.2(j)(1). However, given the precedent1 indicating that gynecological problems can
be considered statutory disabilities because they can be so painful as to limit a woman’s
ability to engage in major life activities such as walking and working, and that Green
pleaded her particular endometriosis was “debilitating,” the Court finds a “reasonable
inference” can be drawn that Green’s ability to work is substantially limited as
compared to most people in the general population. 2

While Defendant makes

reasonable arguments in support of the notion that Green’s alleged impairment did not
“substantially limit a major life activity,” these arguments are more appropriate for a
motion for summary judgment and they do not make Green’s allegation of a substantial
limitation implausible.3
In making this finding, the Court notes Plaintiff Green has pleaded that she
suffers from “debilitating” endometriosis that has required “at least 12 prior
gynecological surgeries” in the last 17 years and that she was treated differently and
fired shortly after informing Defendant of having to undergo a hysterectomy. Given
these detailed allegations, the Court finds the inference that her ability to work is
1

“There are numerous disorders of the reproductive system, such as dysmenorrhea and endometriosis,
which are so painful that they limit a woman's ability to engage in major life activities such as walking
and working.” Bragdon v. Abbott, 524 U.S. 624, 660 (1998).
2
Defendant argues that Ms. Green was working at all relevant times and therefore a claim that her
multiple gynecological procedures affected her ability to work is illogical. However, an impairment
“need not prevent, or significantly or severely restrict, the individual from performing a major life activity
in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1). Furthermore, this assertion
does not take into account her hysterectomy which forced her to take over six weeks off—allegedly
resulting in her firing.
3
The fact that every case cited by Defendant involved a motion for summary judgment, as opposed to a
motion to dismiss, although not determinative, supports this conclusion.

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substantially limited as compared to most people in the general population is
reasonable.

Accordingly, the Court finds Plaintiff Green has adequately pled a

plausible claim of disability under KRS § 344.010(4)(a).
(b) Plaintiff Michaels
Michaels was a salaried Woodhaven Country Club manager responsible for the
bar area and social events. (Docket No. 1, ¶ 16.) Michaels alleges that he had knee
surgery “on March 1, 2012, and afterwards Plaintiff Michaels was unable to walk.”4
(Docket No. 1, ¶ 17.) He states he informed his direct supervisor of the need to have
this orthopedic surgery to address a knee injury. Michaels further alleges that a few
days into his recovery he received constant phone calls from Woodhaven employees
regarding various and escalating problems at Woodhaven as a result of his absence and
the inability of the newly hired assistant manager to operate the bar. Subsequently, his
direct supervisor, Chance Maguire, phoned him complaining that the bar was beginning
to fall apart. Michaels offered to return to work in a wheelchair or crutches, but
Maguire rejected this offer and stated Woodhaven would have to hire a new manager to
replace Michaels.5 (Docket No. 1, ¶ 17, 18, 19.)
Defendant argues that Michaels has not alleged an impairment of a major life
activity other than through bare, conclusory allegations.

As with Green’s alleged

impairment, there is precedent accepting knee injuries as disabilities that substantially
limit such major life activities as walking, standing, and lifting. See, e.g., Manigan v.
4

Defendant asserted that Plaintiff Michaels merely alleged he had trouble walking. The Complaint does
generally state that “Plaintiff Michaels previously sustained a knee injury which has resulted in multiple
surgical procedures and limited his ability to walk,” but it also alleges he was unable to walk following
the most recent knee surgery. (Docket No. 1, ¶ 9.)
5
Michaels also states that Maguire said he would “consider giving him some bartending shifts after he
recovered.” (Docket No. 1, ¶ 19.)

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Sw. Ohio Reg’l Transit Auth., 385 Fed. App’x 472, 475 n. 4 (6th Cir. 2010); Talley v.
Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1107 (6th Cir. 2008). Furthermore,
it is clear that walking constitutes a major life activity and that Michaels alleges his
knee injuries substantially limited that activity.
Defendant also argues that Michaels has not made any allegations concerning
how he is substantially limited in walking as compared to the average person.
However, Michaels has in fact alleged his knee surgery left him “unable” to walk. The
inability to walk would inherently be a substantial limitation as compared to the average
person. In any event, even if his impairment only “limited” his ability to walk, the
Court believes it is a reasonable inference that this substantially limited him in
comparison to the average person.

Accordingly, the Court finds Michaels has

adequately pleaded a plausible claim of disability under § 344.010(4)(a).
(c) KRS § 344.010(4)(c)
The Court notes that Plaintiffs have alleged they are disabled under each of the
three prongs which define “disability” under KRS § 344.010(4). Even if the Court
found the pleading was insufficient to establish a plausible claim of a disability that
substantially limited a major life activity, Plaintiffs still have pleaded they are disabled
under § 344.010(4)(c) because their employers regarded them as having such an
impairment. Plaintiffs have pled Defendant’s general manager treated them differently
and/or terminated them shortly after they informed him of having to undergo surgery
because of their physical impairments. As a result, the Court finds Plaintiffs have
properly pleaded facially plausible allegations that Defendant regarded them as disabled
and terminated them as a result.
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2. Otherwise Qualified to Perform Requirements of Jobs With or Without
Reasonable Accommodation
Defendant argues the Complaint fails to establish a prima facie case of disability
discrimination because Plaintiffs have not alleged they were “otherwise qualified” to
perform the requirements of their job at Woodhaven. While true that Plaintiffs did not
expressly state they were “otherwise qualified” to perform the requirements of their jobs
at Woodhaven, the Court finds implicit in the references to “recovery” time, (Docket
No. 1,¶ 12, 15, 18), that subsequent to their recovery they would have been “otherwise
qualified” to perform the requirements of their jobs.
The Court also notes that Green alleges her supervisor “began to treat her much
differently and much more negatively than he had immediately prior to learning of her
medical condition.” (Docket No. 1, ¶ 13.) This different treatment was during the time
Green was still working and therefore was presumably “otherwise qualified” to perform
her job. Furthermore, Michaels has alleged he offered to return to work in a wheelchair
or crutches and that this offer was rejected. (Docket No. 1, ¶ 19.) Accordingly, the
Court finds Plaintiffs have properly pleaded facially plausible allegations that Plaintiffs
were otherwise qualified to perform the requirements of their jobs with or without
reasonable accommodation.
3. Suffering of an Adverse Employment Decision
Defendant does not dispute that Plaintiffs have pleaded they suffered adverse
employment decisions.
disabilities.

Both Plaintiffs allege they were fired as a result of their

Accordingly, the Court finds Plaintiffs have properly pleaded facially

plausible allegations that they suffered adverse employment decisions, as is required for
a prima facie case for disability discrimination. Plaintiffs have properly pleaded the
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three requirements for a prima facie case of disability discrimination. Accordingly,
Plaintiffs’ claims of disability discrimination under KRS § 344 are plausible and
Defendant’s Motion to Dismiss will be DENIED as to these claims.
CONCLUSION
For these reasons, and consistent with the Court’s conclusions above,
IT IS HEREBY ORDERED that Defendant Woodhaven Country Club, Inc.’s
Motion to Dismiss, (Docket No. 5), is GRANTED in part and DENIED in part, as
follows:
(1) Defendant’s Motion to Dismiss is GRANTED as to claims asserted for
violation of the ADA in Count II; and
(2) Defendant’s Motion to Dismiss is DENIED as to claims of disability
discrimination under Kentucky Revised Statute § 344.

IT IS SO ORDERED.
Date:

cc:

December 19, 2013

Counsel

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