Hargett v. Jefferson County Board of Education
Filing
45
MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 3/9/2017, re Defendant's 40 MOTION for Summary Judgment.cc: Counsel (RLK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
AVADAWN HARGETT
v.
PLAINTIFF
CIVIL ACTION NO. 3:14-cv-00869-CRS-CHL
JEFFERSON COUNTY
BOARD OF EDUCATION
DEFENDANT
Memorandum Opinion
I.
Introduction
This matter is before the Court on the motion of Defendant the Jefferson County Board of
Education (JCBE) for summary judgment under Federal Rule of Civil Procedure 56(a), ECF No.
43. Plaintiff Avadawn Hargett responded, ECF No. 43. JCBE replied, ECF No. 44. For the
reasons discussed below, the Court will grant JCBE’s motion for summary judgment.
II.
Background
B.
Hargett’s Employment at Audubon Traditional Elementary School
Hargett began her employment with the Jefferson County Public Schools (JCPS) in
August 1987. Hargett Dep. 3, ECF No. 40-2. In 2007, Hargett began teaching third grade at
Audubon Traditional Elementary School (“Audubon”). Id.; Notification of Change 2, ECF No.
40-6. In May of 2013, Hargett requested a leave of absence under the Family Medical Leave Act
(FMLA), which was granted. Notification of Change 2, ECF No. 40-7; Designation Notice
FMLA, 2, ECF No. 40-8. Hargett and Audubon intended that her FMLA leave of absence would
end in August 2013. Notification of Change 2, ECF No. 40-7.
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Hargett’s planned return date, however, was extended until September 2013 because she
was scheduled to undergo knee surgery. Notification of Change 2, ECF No. 40-9; Hargett Dep.
6, ECF No. 40-2. Hargett later provided JCBE a series of four doctor’s notes from Dr. Joseph F.
Catalano that extended the date on which Hargett was scheduled to return to teaching at
Audubon. The first doctor’s note was dated August 6, 2013. 8/6/13 Return to Work Note 2, ECF
No. 40-10. This note stated, “Avadawn T Hargett will undergo knee surgery on 8-9-13. She will
be off work from 8-9-13 until tentatively 9-16-13.” Id. The second doctor’s note from Dr.
Catalano was dated August 23, 2013. 8/23/13 Return to Work Note 2, ECF No. 40-11. The note
asserted that Hargett was to “remain off work until her next appointment on September 27th”
and that she would be “reevaluated then.” Id. The third doctor’s note from Dr. Catalano was
dated September 23, 2013. The noted affirmed, “It is my medical opinion that Avadawn T
Hargett is to remain off work from today to 10/6/2013 and may return to work on 10/7/2013. No
prolonged standing or walking. These restrictions are in effect for 4 weeks.” 9/23/13 Return to
Work Note 2, ECF No. 40-12. The fourth and final doctor’s note was dated October 4, 2013.
10/4/13 Return to Work Note 2, ECF No. 40-13. The note stated, “Avadawn T Hargett was seen
in our office today for evaluation. It is my medical opinion that Avadawn T Hargett should
remain out of work until 1/1/2014.” Id.
Like all JCPS teachers, Hargett had building rights. Hargett Dep. 8, ECF No. 40-2. As
described by Hargett, building rights are a right to work in a particular building. Id. They are not
the right to teach a particular grade. Id. Building rights derive from JCBE’s collective bargaining
agreement with the Jefferson County’s Teachers Association (JCTA). JCBE-JCTA Agreement 2,
ECF No. 40-14. Under this agreement, “[t]he Employer will keep the employee’s assignment
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available upon resumption of assigned duties provided: . . . The employee’s planned absence
does not exceed ninety (90) days.” Id.
Hargett’s planned absence exceeded 90 days from the date when she began her FMLA
leave. See Notification of Change 2, ECF No. 40-15 (asserting that Hargett’s building rights
expired on November 20, 2013); 10/4/13 Return to Work Note 2, ECF No. 40-13 Because
Hargett’s planned absence exceeded 90 days, Tiffany Marshall, the Audubon’s principal, hired a
new teacher to take Hargett’s third grade teaching position. Notification of Change 2, ECF No.
40-16 (stating “on medical leave per documentation until 01/06/2014. Please contact HR for
assignment upon return.”). The new teacher began teaching the third grade class on October 19,
2013. Marshall Aff. ¶ 7, ECF No. 40-17.
Hargett attempted to return to work on November 6, 2013, after Marshall had filled her
third grade teaching position. 11/6/13 Email Exchange 2, ECF No. 40-20. Upon returning, she
provided a fifth doctor’s note from Dr. Catalano. 11/4/13 Return to Work Note 2, ECF No. 4019. Dr. Catalano asserted, “It is my medical opinion that Avadawn T Hargett may return to work
on 11/6/2013 with the following restrictions: No prolonged walking or standing. This work note
suprecedes [sic] any prior note listing return to work as January 2014.” Id.
Shortly thereafter, Marshall offered her a position teaching a first grade class. Marshall
Aff. ¶ 8, ECF No. 40-17. Hargett rejected the offered position. Id. ¶ 9. In an email written to the
EEOC, Hargett explained that she had rejected the offered position because Marshall would not
accept the following three “requested reasonable accommodations/restrictions” that she had
suggested: (1) that she and her students walk with another class and teacher to the lunchroom and
to recess since she walked slowly, (2) that a teacher assistant walk with Hargett and her class to
the computer lab and during bathroom times, and (3) that a teacher assistant help her and check
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on her class when they left the school building during a fire drill. 12/19/13 EEOC Email 2, ECF
No. 40-24. Hargett testified that she did not know if there were teachers’ assistants available to
assist her with her class. Hargett Dep. 11, ECF No. 40-2.
Hargett also testified that she would have preferred to teach fourth grade, for which she
says there was a position available. Id. at 7–8. She specified, “[F]irst grade required more
physical demands. And [Marshall] could have put the teacher she hired in the first grade, and
coming up in that January, she could have given me a fourth grade position . . . So that was a
vacancy in fourth and first, and she wouldn’t give me my third grade or fourth grade that would
fit my physical needs.” Id. Despite her assertions that allowing her to teach fourth grade would
have been a reasonable accommodation, Hargett also recognized that her building rights did not
guarantee her the right to teach a certain grade. Id. at 8.
Hargett also conceded that JCBE offered her a wheelchair to assist her with transitioning
to working with a first grade class. Id. at 12. But Hargett did not consider the wheelchair a
reasonable accommodation because her “doctor wanted [her] moving, not in a wheelchair” and
“I could move through [the classroom] with a cane.” Id. She attested:
And the wheelchair is just trying to get through the hallways with the students
going in both directions and classes going in both direction and classes going,
when I could get through with the cane and use that as an assistance. I had some
assistance, and that’s what was available to the doctor, because he knew my
condition, and [JCBE] didn’t.
Id.
Hargett also testified about taking her FMLA leave of absence. She agreed that no one at
the Jefferson County Public Schools had suggested to her that she had improperly taken FMLA
leave or questioned that medical leave was necessary. Id. at 16. She also confirmed that no one
had suggested to her that the reason she could not be placed back into her old teaching position
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was that she had inappropriately taken medical leave. Id. Hargett also verified that she applied
and obtained disability benefits for the time that she had missed for her knee surgery. Id. at 6.
B.
Hargett’s Employment at Kammerer Middle School
On January 8, 2014, Bill Allison, a JCTA representative emailed JCBE. 1/08/14 Email,
ECF No. 40-25. He stated, “Ms. Hargett is ready and available for placement at another school.
She will accept any class above the 3rd grade. She would prefer high school rather than middle
and as close as possible to her home in Prospect.” Id. The next day, JCBE emailed Hargett and
several other people with a job placement. 1/09/14 Email, ECF No. 40-26. The email specified,
“Avadawn Hargett will return from Leave on Monday, January 13th. She will report to
Kammerer Middle School and teach 8th grade Social Studies.” Id.
Hargett began working at Kammerer Middle School (“Kammerer”) on January 13, 2014
under the supervision of David Armour, the principal. Hargett Dep. 16, ECF No. 40-2. She also
worked with Carolyn Smith, the assistant principal. Id. At Kammerer, Hargett asked for a stool
or chair that sat up high to accommodate her health condition in the classroom. Id. at 17.
Hargett’s request was granted. Id.
About a month after Hargett began teaching at Kammerer, she met with Smith to review
her job responsibilities. Smith Aff. ¶ 4, ECF No. 40-27. Smith asked Hargett to participate in hall
monitoring between morning classes. Id.; Hargett Dep. 17, ECF No. 40-2. Morning hallway
monitoring duties required Hargett to stand at an assigned location in the hallway approximately
50 feet from her classroom for two to three minutes while students walked from one classroom to
another. Smith Aff. ¶ 4, ECF No. 40-27. At the meeting, Hargett did not mention to Smith any
restrictions on her ability to complete her morning hall monitoring duties. Id. ¶ 5.
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Hargett performed morning hallway monitoring duties for several weeks. Hargett Dep.
18, ECF No. 40-2. Hargett, however, believed her morning hallway monitoring duties would
place her knee at risk of re-injury because she was told to stand in the middle of the hall with
students “rushing” from both directions. Id. at 17. Additionally, her monitoring duties “caused
more pain than [she] had had before” and that she “wasn’t able to move.” Id. at 18.
Smith and Hargett discussed ways to accommodate her knee injury while she performed
her morning hallway monitoring duties. Id. Smith told Hargett that she could move around the
hallway, bring her stool into the hallway, or stand in an alcove that was away from the hallway
traffic. Id.; see also Smith Aff. ¶ 7, ECF No. 40-27 (explaining accommodations that Smith
offered Hargett).
On April 7, 2014, Hargett submitted a doctor’s note. Id. ¶ 8. The note stated:
Avadawn T Hargett was seen in our office on 3/31/2014. She is here for
continued treatment regarding orthopedic condition which started August 2013.
She has undergone surgery, 4 months of physical therapy, along with rest. She
still has some impairments resulting in work restrictions of limited walking and
standing. After discussion of her job duties, it is determined she is to avoid hall
duty to reduce the risk of re-injury to the knee.
3/31/14 Return to Work Note 2, ECF No. 40-28. In response, Smith contacted Toni Kelman, a
JCPS leave administrator, about the doctor’s note. Kelman Letter 2–3, ECF No. 40-29. Kelman
advised Smith to send Hargett home until she provided an updated note allowing her to fulfill her
teaching duties in their entirety. Id. at 2; Smith Aff. ¶ 9, ECF No. 40-27. Kelman then contacted
Dr. Catalano’s office for more information. Kelman Letter 2–3, ECF No. 40-29. Dr. Catalano’s
assistant told Kelman that Hargett could perform her morning hallway monitoring duties if she
were given a stool and allowed to sit at the side of the hallway. Id. at 3.
Hargett remained off work for two days and returned to teaching at Kammerer on April
14, 2014. Smith Aff. ¶ 10, ECF No. 40-27. Hargett was eventually paid for these days. Hargett
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Dep. 19, ECF No. 40-2. Armour later agreed to change her hallway monitoring schedule, and she
participated in afternoon hall monitoring for the remainder of the school year. Id.
At the end of the school year, Armour asked Hargett why she was not retiring. Id. Then,
Smith told Hargett that if she did not participate in morning hall monitoring duty or take medical
leave, she would not be eligible for health insurance. Id.
C.
Hargett’s Disability Retirement
Thereafter, Hargett applied for disability retirement. Id. The Kentucky Teachers’
Retirement System (KTRS) received her application. Applicant Statement of Disability 2, ECF
No. 40-30. The application’s fourth question asks, “Was the work stoppage due to illness which
renders you incapable of carrying out your duties?” Id. Hargett checked “yes” in response. Id.
She wrote, “Breathing difficulties got progressively worse teaching in poor environment and
work conditions and a school with no windows. Walking problems started March 2013. I use a
cane to walk.” Id.
Three physicians’ reports accompanied Hargett’s application for disability retirement.
The first report was completed by Dr. Timothy R. Killeen, who confirmed that Hargett suffered
from poorly controlled, severe asthma. Killeen R. 2, ECF No. 40-31. Dr. Killeen also wrote that
he did not believe Hargett would be able to return to work, even if corrective measures were
taken. Id. at 3. The second report was completed by Dr. Catalano. Catalano R. 2, ECF No. 40-33.
Dr. Catalano wrote that he had diagnosed Hargett with knee pain and osteoarthritis in her right
knee. Id. He similarly concluded that he did not believe Hargett would be able to return to work,
even with the addition of corrective measures. Id. at 3. The third report was completed by Dr.
Killeen, who again wrote that Hargett suffered from severe persistent asthma. Killeen R. 2, ECF
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No. 40-32. He again checked that he did not expect Hargett to be able to return to work,
regardless of whether corrective measures were taken. Id. at 3.
KTRS approved Hargett’s application for disability retirement with an effective day of
July 1, 2014. 7/22/14 KTRS Letter 2, ECF No. 40-34. KTRS affirmed, “Disability retirees may
not be employed whether paid or voluntary in any position that requires the same job duties or
qualifications as a position under KTRS whether inside or outside of Kentucky[,] nor are they
allowed to hold a position that would entitle them to membership in any other publically funded
retirement system.” Id. KTRS also noted that Hargett would need to submit updated medical
information in July 2015 to remain eligible for disability retirement. Id.
In July 2014, a KTRS counselor notified Hargett that she was eligible to purchase service
credit for the 90 days’ leave of absence she had taken during the 2013 to 2014 school year.
7/13/14 KTRS Letter 2, ECF No. 40-35. The purchase would increase Hargett’s service credit
from 24.52 years to 25.0 years. Id. Hargett accepted the offer to purchase the service credit. Id.
In July 2015, Hargett submitted updated medical information to maintain her disability
retirement. Catalano R. 2, ECF No. 40-37. Dr. Catalano provided that Hargett “continues to have
pain in her knee. Recently had an acute exacerbation. She uses a cane. Complains of swelling—
no redness.” Id. He also noted that Hargett had exacerbated her pre-existing osteoarthritis in her
right knee after falling while disembarking an airplane. Id. Dr. Catalano concluded that, even
with corrective measures, Hargett was unlikely to be able to return to work because she would be
unable to stand or walk for any substantive length of time. Id. at 3.
Also in July 2015, Hargett was required to certify that she had not been employed during
the 2014 calendar year to continue her disability requirement. Disability Earning Aff. 2, ECF No.
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40-38. The KTRS affidavit, which Hargett signed, stated, “Members retired on disability are
prohibited from any type of employment related to teaching or education related work.” Id.
In 2016, because she had twenty-five years of service credit and two years of service
credit during the time she had received disability retirement payments, Hargett became eligible
for full retirement. 7/11/2016 KTRS Letter, ECF No. 40-36.
D.
Procedural History
In December 2014, Hargett filed suit in this Court against JCBE. Compl. 1, ECF No. 1.
She asserts that JCBE violated her rights under the Americans with Disabilities Act (ADA), as
amended, 42 U.S.C. § 12101, et seq. and the Kentucky Civil Rights Act (KCRA), Ky. Rev. Stat.
Ann. § 344.010, et seq. by discriminating against her because of her actual or perceived
disability (Count I). Id. ¶¶ 29–32. She also asserts that JCBE interfered with her rights under the
Family Medical Leave Act (FMLA), as amended, 29 U.S.C. § 2601, et seq. by failing to restore
her to her third-grade teaching position after her leave of absence had expired (Count II, part 1).
Id. ¶¶ 33–36. She finally asserts that JCBE retaliated against her, thereby violating her FMLA
rights, by terminating her (Count II, part 2). Id. ¶¶ 37–40. She seeks (1) lost wages and benefits,
(2) compensatory damages, including lost future earning capacity, (3) punitive damages for
violations of the ADA, (4) liquidated damages for violations of the FMLA, (5) pre- and postjudgement interest, and (6) costs and fees. Id. at 6.
III.
Standard
JCBE now moves for summary judgment on Hargett’s claims. Mot. Summ. J. 1, ECF No.
40. Before granting a motion for summary judgment, a court must find 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). The party moving for summary judgment bears the initial burden of establishing
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the nonexistence of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party satisfies this burden by “citing to particular parts of materials in the
record” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c). When resolving a motion for summary judgment, the court must
view the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S.
372, 378 (2007).
IV.
Whether Summary Judgment Should Be Granted on Hargett’s Disability Discrimination
Claims Asserted under the ADA and KCRA
The ADA provides, “No covered entity shall discriminate against a qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112. Similarly, the KCRA states that “[i]t is an
unlawful practice for an employer . . . [t]o 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 employment, because . . . the person is a qualified individual with a disability.”
Ky. Rev. Stat. Ann. § 344.040(1)(a). Courts analyze the KCRA congruent with the ADA’s
statutory scheme and terms. Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003);
Henderson v. Ardco, Inc., 247 F.3d 645, 649 (6th Cir. 2001).
To assert an ADA disability discrimination claim, a plaintiff must show that (1) “he is a
disabled person within the meaning of the ADA,” (2) “he is qualified, that is, with or without
reasonable accommodation which he must describe, he is able to perform the essential functions
of the job,” and (3) “the employer terminated him because of his disability.” Gantt v. Wilson
Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998). The plaintiff may provide direct
10
evidence of discrimination. Id. He may instead rely on circumstantial evidence and the burden
shifting method articulated in McDonnell Douglas Corp. v. Green, 4111 U.S. 792 (1973), as
refined by Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Id.
JCBE argues that this Court should grant summary judgment on Hargett’s ADA and
KCRA claims because (1) Hargett was not “otherwise qualified” to perform the essential
functions of a teacher, (2) even if she was “otherwise qualified,” she forfeited this status by
declining reasonable accommodations, (3) she was not subjected to an “adverse employment
action,” (4) it had a legitimate, nondiscriminatory reason for reassigning Hargett to Kammerer,
and (5) regardless, it is entitled to assert the Faragher-Ellerth affirmative defense. Mem. Supp.
Mot. Summ. J. 12–22, ECF No. 40-1.
A.
Whether Hargett Was “Otherwise Qualified” to Perform the Essential Functions
of a Teacher
JCBE argues that summary judgment is appropriate on Hargett’s claims under the ADA
and KCRA because Hargett was not “otherwise qualified” to perform the essential functions of a
teacher. Id. at 13. JCBE explains that Hargett and her doctors certified that she could not perform
the essential functions of a teacher when she accepted disability retirement benefits that began on
July 1, 2014. Id. at 13. JCBE further expounds that Hargett does not have a viable disability
claim between when she took a leave of absence for her knee surgery in August 2013 and when
she began receiving retirement benefits because she received the full benefit of her salary and
disability benefits. Id. at 14–15. In response, Hargett asserts that the “entirety of the
discrimination against [her] took place prior to her applying for and receiving retirement
benefits” on July 1, 2014. Resp. Opp. Mot. Summ. J. 7, ECF No. 43. Moreover, there is a
genuine dispute of material fact regarding whether she received the full benefit of her salary and
disability benefits before July 1, 2014. Id.
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The “otherwise qualified” inquiry requires a “consideration not only of the handicapped
applicant’s ability to perform the job’s essential function, but also whether a reasonable
accommodation by the employer would enable the handicapped person to perform those
functions.” Hall v. U.S. Postal Serv., 857 F.2d 1073, 1078 (6th Cir. 1988).1 Accordingly, an
employee will be “otherwise qualified” if an employer’s reasonable accommodation would
permit the employee to perform the job’s essential functions. Leeds v. Potter, 249 F. App’x 442,
448 (6th Cir. 2007).
Here, the Court finds that Hargett was not “otherwise qualified” after July 1, 2014
because, as part of her application to receive disability retirement, she and her physicians
certified that she could not perform the essential functions of a teacher. Killeen R. 2, ECF No.
40-31; Catalano R. 2, ECF No. 40-33; Killeen R. 2, ECF No. 40-32. But there remains a genuine
dispute of material fact as to whether Hargett was “otherwise qualified” between the time when
she took a leave of absence for her knee surgery in August 2013 and when she began receiving
retirement benefits in July 2014. Whether she received the full benefit of her salary and disability
benefits does not concern whether she could perform her position’s essential functions.
Therefore, the Court declines to grant summary judgment on Hargett’s ADA and KCRA claims
because she was not “otherwise qualified” to the extent that the claims are based on events
happening before July 2014.
B.
Whether Hargett Forfeited her “Otherwise Qualified” Status by Declining
Accommodations that JCBE Asserts Were Reasonable
JCBE argues that even if Hargett was “otherwise qualified,” she forfeited this status when
she rejected reasonable accommodations that it offered for her knee condition, and thus summary
1
The ADA parallels the protections of the Rehabilitation Act and thus cases brought under the
acts are analyzed similarly. Maddox v. University of Tenn., 62 F.3d 843, 846 n.2 (6th Cir. 1995).
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judgment should be granted on her ADA and KCRA claims. Mem. Supp. Mot. Summ. J. 15–17,
ECF No. 40-1. Hargett contends that there is a genuine dispute of material fact regarding
whether the accommodations that JCBE offered were reasonable. Resp. Opp. Mot. Summ. J. 8–
9, ECF No. 43.
Reasonable accommodations may include:
making existing facilities used by employees readily accessible to and usable by
individuals with disabilities, job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications of examinations,
training materials or policies, the provision of qualified readers or interpreters,
and other similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9)(B).
To determine if an accommodation is reasonable, “it may be necessary for the covered
entity to initiate an informal interactive process with the individual with a disability in need of
the accommodation.” 29 C.F.R. § 1630.2(o)(3). The interactive process is intended to “identify
the precise limitations resulting from the disability and potential reasonable accommodations that
could overcome those limitations.” Id. Although the interactive process is not in the ADA’s text,
the United States Court of Appeals for the Sixth Circuit has declared that the process is
mandatory and that both parties must participate in good faith. Kleiber v. Honda of Am. Mfg.,
485 F.3d 862, 871 (6th Cir. 2007).
An employer participates in good faith when “it readily meets with the employee,
discusses any reasonable accommodations, and suggests other possible positions for the
plaintiff.” Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 203 (6th Cir. 2010). When there is
more than one reasonable accommodation, the employer has the discretion of which
accommodation to provide. Smith v. Honda of Am. Mfg., 101 F. App’x 20, 25 (6th Cir. 2004). If
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an employee rejects the employer’s offer of a reasonable accommodation, he “forfeits the status
as a ‘qualified individual with a disability.’” Id. (internal citations omitted).
In this case, the evidence shows that JCBE engaged in an informal interactive process
with Hargett to discuss her limitations and to discuss potential accommodations, and that Hargett
rejected several reasonable accommodations. When she returned to work at Audubon following
her leave of absence and was offered a teaching position with a first grade class, she demanded
(1) that she and her students walk with another class and teacher to the lunchroom and to recess
since she walked slowly, (2) that a teacher assistant walk with Hargett and her class to the
computer lab and during bathroom times, and (3) that a teacher assistant help her and check on
her class when they left the school building during a fire drill. 12/19/13 EEOC Email 2, ECF No.
40-24. JCBE denied these requests and instead offered her a wheelchair to use during class
transitions. Hargett Dep. 12, ECF No. 40-2. Hargett rejected the wheelchair. Id.
Hargett does not provide any evidence, such as medical testimony, showing that the
wheelchair was not a reasonable accommodation. She testified that her “doctor wanted [her]
moving, not in a wheelchair” and that she “could move through [the classroom] with a cane.” Id.
Yet, a wheelchair would accomplish the same objective—allowing her to keep up with her class
during transition times and during a fire drill—as would the accommodations that she proposed.
Similarly, when Hargett transitioned to Kammerer Middle School and was asked to
participate in morning hallway monitoring duty, Smith and Hargett discussed ways to
accommodate her knee injury. Id. at 18. Smith told Hargett that she could move around the
hallway, bring her stool into the hallway, or stand in an alcove that was away from the hallway
traffic. Id.; see also Smith Aff. ¶ 7, ECF No. 40-27 (listing accommodations that Smith offered).
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Hargett rejected the school’s proposed accommodations when she gave JCBE a doctor’s note
stating that she should avoid morning hallway duties altogether. Smith Aff. ¶ 8, ECF No. 40-27.
Hargett does not provide evidence showing that moving around the hallway, bringing a
stool into the hallway, or standing in an alcove away from the hallway were not reasonable
accommodations. Additionally, Dr. Catalano’s assistant stated that Hargett could perform
morning hallway monitoring duties if she were permitted a stool and allowed to stand at the side
of the hallway. Kelman Letter 3, ECF No. 40-29. Because Hargett rejected JCBE’s reasonable
accommodations, she forfeited her status as a qualified individual and thus summary judgment is
appropriate on the remainder of her ADA and KCRA claims.
C.
Whether Hargett was Subjected to an “Adverse Employment Action”
JCBE alternatively maintains that summary judgment should be granted on Hargett’s
ADA and KCRA claims because she was not subjected to an adverse employment action. Mem.
Supp. Mot. Summ. J. 17–19, ECF No. 40-1. JCBE explains that Hargett’s transfer to Kammerer
and decision to take voluntary disability retirement did not amount to a loss of title, pay, or
benefits, or a constructive discharge. Id. Hargett contends in opposition that a “reasonable jury
could find that Ms. Hargett was subjected to Adverse Employment actions when she was
transferred to Kammerer, when she was sent home after giving her administration a doctor’s note
stating she couldn’t perform hall monitor duty, and when she was constructively discharged and
forced into retirement.” Resp. Opp. Mot. Summ. J. 9–12, ECF No. 43.
i. Whether Hargett’s Transfer to Kammerer was an Adverse Employment Action
When a plaintiff is transferred to a new location without a change in wages or benefits, he
must show that there has been a constructive discharge to file an adverse employment action.
Darnell v. Campbell Cty. Fiscal Ct., 731 F. Supp. 1309, 1313 (E.D. Ky. 1990), aff’d, 924 F.2d
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1057 (6th Cir. 1991). To demonstrate constructive discharge, the plaintiff must show “(1) the
employer deliberately created intolerable working conditions, as perceived by a reasonable
person, (2) the employer did so with the intention of forcing the employee to quit, and (3) the
employee actually quit.” Regan v. Faurecia Auto. Seating, Inc., 679 F.3d 475, 481 (6th Cir.
2012) (citing Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012)).
In this case, Hargett does not dispute that the transfer to Kammerer did not change her
wages or benefits. Additionally, the evidence shows that the transfer did not amount to a
constructive discharge; Hargett was transferred only after a JCTA representative emailed JCBE
and stated that she would “accept any class above the 3rd grade” and would prefer to be “as close
as possible to her home in Prospect.” 1/08/14 Email, ECF No. 40-25. Therefore, Hargett’s
transfer to Kammerer did not constitute an adverse employment action.
ii. Whether Hargett’s Being Sent Home after Giving JCBE a Doctor’s Note was
an Adverse Employment Action
The Sixth Circuit has held that “a suspension with pay and full benefits pending a timely
investigation into suspected wrongdoing is not an adverse employment action.” Peltier v. United
States, 388 F.3d 984, 988 (6th Cir. 2004) (citing White v. Burlington N. & Santa Fe R. Co., 364
F.3d 789, 803 (6th Cir. 2004)) (emphasis in original). For example, in Jackson v. City of
Columbus, the major suspended a police chief for four days with pay pending an investigation of
his alleged improper conduct in office. 194 F.3d 737, 744 (6th Cir. 1999). The police chief sued
the City of Columbus for racial discrimination. Id. at 745. The district court found that the police
chief had not demonstrated that he had been subjected to an adverse employment action. Id. at
752. On appeal, the Sixth Circuit affirmed the district court’s ruling on the issue. Id. The
appellate court explained that the police chief had not shown that he had been subjected to an
adverse employment action, noting that he had not provided any evidence “suggesting that he
16
was subjected to a termination of employment, a change in salary, demotion, loss of benefits,
decreased work hours, or significantly diminished material responsibilities.” Id.
Similarly, Hargett remained off work for two days and returned to her same teaching
position at Kammerer. Smith Aff. ¶ 10, ECF No. 40-27. Hargett was paid for these two days.
Hargett Dep. 19, ECF No. 40-2. Because Hargett received her pay and benefits for when she was
suspended, she cannot show that her being sent home constituted an adverse employment action.
iii. Whether Hargett was Constructively Discharged and Forced into Retirement
and, if so, Whether these Actions were Adverse Employment Actions
Hargett argues that she was “forced to work without the simplest accommodation to help
alleviate her disability” and that “the working conditions had become intolerable.” Resp. Opp.
Mot. Summ. J. 12, ECF No. 43. When an employee retires, his retirement is “presumed to be
voluntary.” Nunn v. Lynch, 113 F. App’x 55, 59 (6th Cir. 2004).
The facts in this case do not support Hargett’s assertions that she was not provided any
accommodations and thus was subjected to “intolerable” working conditions. For example, when
Hargett returned to Audubon and was asked to teach a first grade class, JCBE offered her a
wheelchair to use during class transitions. Hargett Dep. 12, ECF No. 40-2. When Hargett
transitioned to Kammerer Middle School and was asked to participate in morning hallway
monitoring duties, the vice principal told Hargett that she could move around the hallway, bring
her stool into the hallway, or stand in an alcove that was away from the hallway traffic. Id. at 18.
Given that the evidence does not support a finding that Hargett was constructively discharged,
her allegedly “forced retirement” was not an adverse employment action.
Hargett’s failure to show that she was subjected to an adverse employment action
provides additional grounds for a grant of summary judgment on her ADA and KCRA claims.
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D.
Whether JCBE Had a Legitimate, Nondiscriminatory Reason for Reassigning
Hargett, and Whether this Reason was Pre-textual
JCBE further contends that summary judgment should be granted on Hargett’s ADA and
KCRA claims even if it finds that Hargett established a prima facie case of discrimination
because it had a legitimate, non-discriminatory reason for reassigning her from Audubon to
Kammerer that was not pretextual. Mem. Supp. Mot. Summ. J. 19–21, ECF No. 40-1. JCBE
specifies that it followed the collective bargaining agreement’s terms and filled Hargett’s
teaching position with another teacher only after she had submitted a doctor’s note stating that
she would be on a leave of absence until January 1, 2014, which was more than 90 days after she
had begun her FMLA leave. Id. Hargett argues, however, that a “reasonable person could find
that Ms. Hargett was transferred not because the school thought she would be out for a longer
period of time but instead to avoid having to accommodate her disability.” Resp. Opp. Mot.
Summ. J. 12–13, ECF No. 43. Moreover, “[a]t a minimum Ms. Hargett’s [sic] has produced
enough evidence to create a genuine issue of material fact as to whether the defendants [sic]
given reason for her transfer was actually pretextual and only given to cover up their
discriminatory intent.” Id.
When a plaintiff establishes a prima facie case of disability discrimination, the burden
shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse
employment action. See Laws v. HealthSouth N. Ky. Rehab. Hosp. Ltd. P'ship, 508 F. App’x
404, 413 (6th Cir. 2012). If the defendant is able to provide such a reason, the plaintiff must
“prove ‘by a preponderance of the evidence’ that the defendant's proffered reasons were not its
true reasons, but were merely a pretext for illegal discrimination.” Kocsis v. Multi-Care Mgmt.,
97 F.3d 876, 883 (6th Cir. 1996) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
252–53 (1981)). The plaintiff must show that (1) “the proffered reasons had no basis in fact”, (2)
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“the proffered reasons did not actually motivate the action,” or (3) the proffered reasons “were
insufficient to motivate the action.” Id. (citing Manzer v. Diamond Shamrock Chems. Co., 29
F.3d 1078, 1084 (6th Cir. 1994)).
In this case, even if Hargett were able to show that she was subjected to discrimination
prohibited under the ADA and the KCRA, JCBE has provided evidence showing that there was a
legitimate, non-discriminatory reason for reassigning her to Kammerer. JCBE’s collective
bargaining agreement with JCTA states, “[t]he Employer will keep the employee’s assignment
available upon resumption of assigned duties provided: . . . The employee’s planned absence
does not exceed ninety (90) days.” Id. JCBE-JCTA Agreement 2, ECF No. 40-14. Hargett’s
planned absence exceeded 90 days from the date when she began her FMLA leave. See
Notification of Change 2, ECF No. 40-15 (asserting that Hargett’s building rights expired on
November 20, 2013); 10/4/13 Return to Work Note 2, ECF No. 40-13. Because Hargett’s
planned absence exceeded 90 days, JCBE hired another teacher to fill her third grade teaching
position, Marshall Aff. ¶ 7, ECF No. 40-17, which led to Hargett’s transfer to Kammerer.
Hargett has not provided evidence demonstrating that the length of her planned absence
had no basis in fact, did not motivate her eventual transfer to Kammerer, or was insufficient to
motivate her eventual transfer to Kammerer. Thus, JCBE’s legitimate, non-discriminatory reason
for reassigning Hargett provides another ground for granting its motion for summary judgment
on her ADA and KCRA claims.
E.
Whether the Faragher-Ellerth Defense Applies to Hargett’s Disability
Discrimination Claim
JCBE lastly argues that the Court should grant summary judgment on Hargett’s ADA and
KCRA claims because its anti-discrimination policy entitles it to the affirmative FaragherEllerth defense. Mem. Supp. Mot. Summ. J. 21–22, ECF No. 40-1. Hargett asserts that the
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defense does not apply in this case because the case does not involve a hostile work environment
claim and because she availed herself of the reporting system established by JCBE and JCBE
failed to correct the discrimination. Resp. Opp. Mot. Summ. J. 13–14, ECF No. 43.
The Faragher-Ellerth defense consists of two elements: (1) “that the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior” and (2) the
plaintiff employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
The EEOC asserts that the Faragher-Ellerth defense applies to “harassment by supervisors based
on race, color, sex (whether or not of a sexual nature), religion, national origin, protected
activity, age, or disability.” EEOC Enforcement Guidance, No. 915.002, sex. II, 5, dated June 18,
1999 (internal citations omitted).
Because Hargett does not allege that she was a victim of harassment by a supervisor, the
Faragher-Ellerth defense does not apply in this case. See Compl. ¶¶ 33–36, ECF No. 1. Thus,
summary judgment on her discrimination claims is inappropriate on this ground.
V.
Whether Summary Judgment Should Be Granted on Hargett’s FMLA Claims
The FMLA entitles eligible employees to up to twelve weeks of leave per year for certain
types of events, including “a serious health condition that makes the employee unable to perform
the functions of [his or her] position.” 29 U.S.C. § 2612(a). JCBE argues that summary judgment
is appropriate on Hargett’s FMLA claims. Mem. Supp. Mot. Summ. J. 22–25, ECF No. 40-1.
A.
Whether Hargett’s FMLA Interference Claim Fails
JCBE argues that summary judgment is appropriate on Hargett’s FMLA interference
claim because she received FMLA benefits and the leave to which she is entitled. Mem. Supp.
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Mot. Summ. J. 22–23, ECF No. 40-1. Additionally, JCBE asserts that “there is no evidence
whatsoever to support the allegation that Hargett was ‘entitled’ to return to her exact same
classroom upon her return from leave.” Id. at 23. Hargett maintains, however, that JCBE failed to
offer her a position that was equivalent to teaching third grade upon her return from her FMLA
leave of absence and thus she has established a prima facie case of FMLA interference. Resp.
Opp. Mot. Summ. J. 15–16, ECF No. 43.
To assert an FMLA interference claim, the plaintiff must establish “(1) [s]he was an
eligible employee, (2) defendant was a covered employer, (3) [s]he was entitled to leave under
the FMLA, (4) [s]he gave defendant notice of [her] intent to take leave, and (5) the defendant
denied [her] FMLA benefits or interfered with FMLA rights to which [s]he was entitled.”
Jaszczyszyn v. Advantage Health Physician Network, 504 F. App’x 440, 446 (6th Cir. 2012)
(citing Harris v. Metro Gov’t of Nashville & Davisdon Cty., Tenn., 594 F.3d 476, 482 (6th Cir.
2010)). The issue in an FMLA interference claim is “whether the employer provided its
employee the entitlements set forth in the FMLA.” Arban v. West Publ'g Corp., 345 F.3d 390,
401 (6th Cir. 2003) (citing Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998)).
In this case, the evidence fails to demonstrate that JCBE denied her FMLA benefits or
interfered with her FMLA rights. When Hargett requested an FMLA leave of absence, her
request was granted. Notification of Change 2, ECF No. 40-7; Designation Notice FMLA 2, ECF
No. 40-8. When Hargett requested an extension of her FMLA leave, her extension was also
granted. Notification of Change 2, ECF No. 40-9; Hargett Dep. 6, ECF No. 40-2. Moreover,
when Hargett attempted to return to work after a planned absence extending beyond 90 days,
JCBE attempted to find her a replacement position. JCBE first offered her a position teaching
first grade. Marshall Aff. ¶ 8, ECF No. 40-17. Then, when a JCTA representative emailed JCBE
21
stating that Hargett would be willing to accept any class above the third grade, 1/08/14 Email,
ECF No. 40-25, JCBE reassigned her to Kammerer. 1/09/14 Email, ECF No. 40-26.
Because JCBE provided Hargett the entitlements set forth in the FMLA, her interference
claim fails as a matter of law, and the Court will grant summary judgment on this claim.
B.
Whether Hargett’s FMLA Retaliation Claim Fails
JCBE contends that the Court should grant summary judgment on Hargett’s FMLA
retaliation claim because she has failed to establish that it took an adverse employment action
towards her or a causal connection between any adverse employment action and FMLAprotected activity. Mem. Supp. Mot. Summ. J. 24–25, ECF No. 40-1. Hargett argues that she
“has produced enough circumstantial evidence to create a genuine issue of material fact as to
whether her reassignment was in reality not done for legitimate non-discriminatory reasons but
instead done as pretext for her having taken extended FMLA leave.” Resp. Opp. Mot. Summ. J.
16–17, ECF No. 43.
To assert an FMLA retaliation claim, the plaintiff must establish “(1) she was engaged in
an activity protected by the FMLA; (2) the employer knew that she was exercising her rights
under the FMLA; (3) after learning of the employee's exercise of FMLA rights, the employer
took an employment action adverse to her; and (4) there was a causal connection between the
protected FMLA activity and the adverse employment action.” Jaszczyszyn, 504 F. App’x at 447
(citing Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006)).
Here, Hargett is unable to show a causal connection between her taking FMLA leave and
her transfer to Kammerer. As discussed above, JCBE had a legitimate, non-discriminatory reason
for transferring her to Kammerer. Moreover, she conceded that no one at JCPS suggested to her
that she had improperly taken FMLA leave or questioned that medical leave was necessary.
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Hargett Dep. 16, ECF No. 40-2. She also confirmed that no one suggested to her that she could
not be placed back into her old position because she had inappropriately taken medical leave. Id.
Given that Hargett has not provided evidence demonstrating that her transfer to
Kammerer was in retaliation for her taking FMLA leave, summary judgment is appropriate on
her FMLA retaliation claim.
VI.
Conclusion
The Court will grant JCBE’s motion for summary judgment. An order will be entered in
accordance with this memorandum opinion.
March 9, 2017
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