Bryson v. Regis Corp.

• Decision Date: 16 August 2007
• Docket Number: No. 06-5137.,06-5137.
• Citation: 498 F.3d 561
• Parties: Karen BRYSON, Plaintiff-Appellant, v. REGIS CORP.; Minnesota Regis Corp.; Borics; Regis Hairstylists; Supercuts Corp. Shops, Inc.; Supercuts; Supercuts of Delaware, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

498 F.3d 561

Karen BRYSON, Plaintiff-Appellant, v. REGIS CORP.; Minnesota Regis Corp.; Borics; Regis Hairstylists; Supercuts Corp. Shops, Inc.; Supercuts; Supercuts of Delaware, Inc., Defendants-Appellees.

No. 06-5137.

United States Court of Appeals, Sixth Circuit.

Submitted: July 25, 2007.

Decided and Filed: August 16, 2007.

ON BRIEF:

Leslie Dean, LESLIE DEAN, ATTORNEY, Lexington, Kentucky, for Appellant. Mauritia G. Kamer, STITES & HARBISON, Lexington, Kentucky, for Appellees.

Before: KEITH, MOORE, and COLE, Circuit Judges.

OPINION

R. GUY COLE, JR., Circuit Judge.

Plaintiff-Appellant Karen Bryson appeals the grant of summary judgment to Defendant-Appellee Regis Corporation¹ on Bryson's claims of (1) retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; (2) retaliation in violation of the Kentucky Civil Rights Act ("KCRA"), Ky.Rev.Stat. § 344.010 et seq.; and (3) disability discrimination in violation of the KCRA, Ky. Rev.Stat. § 344.010 et seq. Bryson also appeals the district court's denial of her motion for partial summary judgment on her disability-discrimination claim.

For the reasons set forth below, we REVERSE the district court's grant of summary judgment on Bryson's FMLA-retaliation and disability-retaliation claims and REMAND for further proceedings. We AFFIRM the district court's grant of summary judgment to Regis on Bryson's disability-discrimination claim and AFFIRM the district court's denial of Bryson's motion for partial summary judgment.

I. BACKGROUND

A. Facts

Karen Bryson worked at a Supercuts store in Lexington, Kentucky for fifteen years. She started out as a hairstylist but was quickly promoted to shift manager and then store manager. As a store manager, Bryson spent approximately ninety percent of her time cutting hair. Her duties also included hiring and firing, employee training and supervision, and managerial paperwork, such as assigning work schedules and keeping track of the store's performance statistics. Bryson's immediate supervisor was Kim Sawyer, a Supercuts "area manager." Bryson and Sawyer talked each week to discuss the store's operations and Bryson's responsibilities.

In approximately October or November 2002, Bryson injured her left knee while cleaning out her closet at home. She went to see a doctor the following day and was instructed only to keep her leg elevated. Over the next several months, Bryson's knee improved and she did not seek additional medical attention. In August 2003, however, she saw her family physician, Dr. Michael Eden, complaining of pain and swelling in the knee. Dr. Eden took x-rays, but these were inconclusive, so he referred her to Dr. Peter Hester, an orthopedic surgeon.

Dr. Hester recommended that Bryson undergo physical therapy to strengthen the muscles around her knee. Bryson complied. She attended physical-therapy sessions twice a week beginning in September 2003, but by mid-October, she and her therapist decided to end the sessions pending further consultation with Dr. Hester because her knee condition was worsening and the physical therapy seemed only to be exacerbating it.

At the beginning of November 2003, Bryson underwent an MRI test, which showed a growth in her knee. Dr. Hester gave her a cortisone injection to reduce the swelling, but there was no improvement. On December 3, the swelling in her knee still not having abated, Dr. Hester advised Bryson that she would need to have surgery. The surgery was scheduled for December 16, and Dr. Hester's surgical nurse told Bryson that, provided everything went according to plan, she would be able to return to work within two weeks.

Bryson kept Sawyer advised about her knee condition and what she was doing to treat it throughout the fall of 2003. On December 6, 2003, she informed Sawyer in a voice mail that she needed to have corrective surgery on her knee and that her doctor had scheduled the surgery for December 16. Bryson testified that Sawyer reacted unfavorably to this news, telling Bryson that she could not take the time off because the store was too busy. Bryson then contacted Dr. Hester's office to find out if she could delay her surgery. Dr. Hester's surgical nurse told her that she could not.

When Bryson relayed to Sawyer her doctor's opposition to a postponement, Sawyer told Bryson that her absence would hurt the store and that she was behaving selfishly. Based on her conversations with Sawyer, Bryson was left with the impression that Sawyer was going to fire her for taking any time off to deal with her knee, although Bryson admitted that Sawyer never explicitly threatened her with termination. Bryson testified that beginning on December 8, when Sawyer first responded to Bryson's voice mail about her scheduled surgery, through December 15, Sawyer retaliated against her by calling her everyday to yell at her; by telling her that she (Sawyer) had spoken with the lawyers at Supercuts who told her that she could deny Bryson's leave request; by forcing Bryson to work on a day that she was scheduled to be off; and by requiring Bryson to work from opening to closing without any breaks the day before her scheduled surgery.

Other Supercuts employees corroborated Bryson's testimony about Sawyer's negative reaction to Bryson's request for medical leave. Roni Richardson, a shift manager at the Lexington store, testified that Sawyer "was quite upset and said [Bryson] uh, `made' it happen at Christmas time, that she could have had this surgery at another time. . . ." (Joint Appendix ("JA") 953.) Further, Richardson testified that Sawyer "informed me that uh, she [Bryson] would not be able to keep her job when she came back, she'd make sure of it. . . ." (JA 953.) Another Supercuts employee, Donna Hundley, testified that she heard Sawyer refer to Bryson as a "crippled ass" while they were driving to an off-site managers' meeting on January 6, 2004, and that Sawyer said that Bryson "won't be at another meeting." (JA 960-61.) At an office party on January 10, 2004, Hundley testified that Sawyer made wisecracks about Bryson not really being injured.

Sawyer disputed that she was angry about Bryson's request for leave but admitted that the timing was inconvenient because it fell during the Christmas holiday: "Well any time during a busy season, it's really hard, and with the store being short-staffed, I don't think I was like upset because if she needed to have the surgery that was fine." (JA 986.)

In the end, Sawyer's hostility did not deter Bryson from requesting FMLA leave. She completed the necessary paperwork and faxed it to Sawyer on December 15, 2003, who forwarded it on to Regis's corporate headquarters. Bryson requested leave for the period of December 16, 2003 through January 1, 2004. On January 9, 2004, Regis formally approved Bryson's request in its "Employer Response To FMLA Request" ("Employer Response"). (JA 212-15.) Although Regis confirmed that Bryson was eligible for FMLA leave, it gave her the option of substituting her paid vacation time for unpaid FMLA leave, which Bryson elected to do. The Employer Response therefore noted that her leave would not be counted against her annual FMLA allotment of twelve weeks and further set her return-to-work date as January 1, 2004.

During Bryson's surgery, Dr. Hester repaired a torn meniscus in her knee and torn cartilage. Bryson's leg was immobilized in a brace for about four weeks following the surgery and she had to use a wheelchair.

At a check-up on December 23, Dr. Hester told Bryson that she would not be able to return to work as expected on January 1. Bryson therefore filed paperwork with Regis in December requesting an extension of her medical leave. In a letter dated February 13, 2004, Regis granted her request, stating:

We are able to extend your leave. Please be advised that FMLA provides up to 12 workweeks of a job-protected leave. You are expected to return to work no later than March 10, 2004. This will exhaust your 12 workweek entitlement to Family and Medical Leave.

(JA 166.)²

Consistent with Regis's FMLA policy, Bryson's treating physician, Dr. Hester, completed two Regis-created forms entitled "Certification of Healthcare Provider" ("Certification") in January and February 2004. On both Certifications, Dr. Hester stated that Bryson could "perform seated work." (JA 218-20.) On March 8, 2004, two days before Bryson's scheduled return to work, Bryson and Dr. Hester completed a Regis form entitled "Release/Intent To Return To Work" ("Release Form") that Regis required employees on FMLA leave to submit prior to coming back on the job. In the section of the Release Form to be completed by the Regis employee, Bryson checked the option stating, "I am currently unable to fully perform all functions of my present position and am requesting assistance with temporary restrictions, as designated below." (JA 243.) Bryson then wrote in, referring to the physician portion of the Release Form: "see next page — doctors [sic] orders—can do seated work only." (JA 243.) Bryson testified that when she included this information on the Release Form, she was relying on her conversations with Dr. Hester, in which he told her that she could perform seated work.

In the physician section of the Release Form, Regis provided a job description for the position of "hairstylist," which it asked the physician to review. The job description specifically enumerated the duties of a "hairstylist," which included such tasks as "[c]ontinuous standing" and "[c]ontinuous walking." (JA 244.) Below the option stating, "The employee is released to return to work on ______ (date), but with the following restrictions," Dr. Hester wrote, "Pt. [patient] unable to return to work at this time to required work responsibilities." (JA 244.) Dr. Hester did not mention any "restrictions" and did not say anything about Bryson being able to perform seated work, although he had previously noted that she could do...