Hallahan v. The Courier Journal, No. 2003-CA-000526-MR.

• Decision Date: 25 June 2004
• Docket Number: No. 2003-CA-000526-MR.
• Citation: 138 S.W.3d 699
• Parties: Dan HALLAHAN, Appellant, v. THE COURIER-JOURNAL, Appellee.
• Court: Kentucky Court of Appeals

138 S.W.3d 699

Dan HALLAHAN, Appellant, v. THE COURIER-JOURNAL, Appellee.

No. 2003-CA-000526-MR.

Court of Appeals of Kentucky.

June 25, 2004.

Appeal from the Jefferson Circuit Court, Action No. 01-CI-005176, Tom McDonald, J Grant S. Roark, Louisville, KY, for appellant.

Jon L. Fleischaker, Ashley C. Pack, Louisville, KY, for appellee.

Before EMBERTON, Chief Judge;¹ SCHRODER and TACKETT, Judges.

OPINION

TACKETT, Judge.

Dan Hallahan appeals from an opinion and order of the Jefferson Circuit Court that granted summary judgment to The Courier-Journal and dismissed Hallahan's complaint for employment related disability discrimination brought pursuant to Kentucky Revised Statutes (KRS) Chapter 344. We affirm.

I. FACTUAL BACKGROUND

Hallahan became employed at The Courier-Journal in the sales department in May 1986 while attending college. In 1990, he was transferred to the circulation department and eventually promoted to the position of Metro Division Manager. As a division manager in the company's main offices, Hallahan's job duties included supervising 30 to 40 newspaper carriers, training carriers, placing carriers in open delivery routes, delivering newspapers to customers who did not receive a newspaper, filling in temporarily when a carrier was unavailable, and other related general customer services.

In early 1998, The Courier-Journal decided that as a part of a restructuring plan related to the delivery of newspapers, all division managers, including Hallahan, would be relocated from the main offices in downtown Louisville to various distribution centers where the bulk newspapers were received from the printer and redistributed to individual carriers for designated surrounding areas. In conjunction with these new distribution procedures, division managers were required to remove the newspapers from the semi-trailer delivery trucks and distribute the bundled newspapers to the individual carriers under their supervision. In addition, division managers became personally responsible for delivering individual newspapers to customers who received no or incomplete newspapers.

In March 1998, Hallahan relocated to a distribution center from the main downtown offices and assumed the above-described additional responsibilities requiring him to physically handle heavy bundles of newspapers, which he had not done previously. Hallahan alleges that as a result of the physical labor and lifting required, he injured his lower back² in August 1998 but continued working. Hallahan states that he gave his supervisor an admittedly vague note from his physician in December 1998, which recommended restrictions on his lifting at work.³

In January 1999, Chris Bauscher became Hallahan's new direct supervisor. Hallahan claims that even after notifying Bauscher of his back problem, Bauscher told him that he needed someone that could do the manual labor and that if he could not, he needed to leave. Hallahan asserts that he felt compelled to continue to do some lifting of newspaper bundles, but other employees helped him when they were available.

In late July or early August 1999, Hallahan applied for an open position in single copy sales, but he was not interviewed for and did not receive the position. Although admitting he has no firm supporting evidence, Hallahan contends that the failure to even give him a courtesy interview was related to the restrictions associated with his spinal condition. Shortly thereafter, Hallahan discovered a note in his personnel file stating that while his performance was satisfactory under prior evaluation standards, it would be considered unsatisfactory under newer standards. The circumstances surrounding placement of the note in his file are unknown.

In September 1999, Hallahan applied for an open position as State Division Manager, which had duties and salary similar to the job he was performing except that it involved a rural area in Indiana with delivery boxes along roadways. Hallahan asserts that Tom Campbell, the supervisor of the State Division, initially encouraged him to apply for the position, but Campbell later expressed reservations based on Hallahan's physical limitations. Hallahan was not hired for the State Division Manager's position, but The Courier-Journal provided evidence that Campbell had no authority over the decision on filling that position.

In October 1999, Bauscher gave Hallahan a written reprimand that detailed several instances of violations of company policies occurring between September 1 and October 20, 1999. In the letter, Bauscher identified one incident where Hallahan had placed a carrier on a route prior to completing the requirement that the carrier be bonded; one incident where Hallahan allowed a carrier to be hired for a route without proper training resulting in faulty performance; and seven incidents where Hallahan failed to deliver replacement newspapers to customers who had not received their newspapers from the carrier. Bauscher warned Hallahan that additional violations of company policies would result in further disciplinary action up to and including termination.

In November 1999, Hallahan met with several supervisors including Bauscher concerning his physical limitations after he complained to Paula Warman, the Employee Relations Manager, about his difficulty in performing the manual labor associated with his job. In the meeting, Hallahan was told that his physical restrictions would be accommodated by not requiring him to lift or move newspaper bundles out of the delivery trucks, but instead allowing him to use a pushcart. Hallahan alleges that even after this meeting, he was required to do some lifting of heavy bundles of newspapers and carrying newspapers in a shoulder bag on routes while replacing absent carriers. Following the meeting, in late November 1999, Hallahan provided a written statement from his family physician stating that he should not do any heavy lifting or lifting above the shoulder level. After requesting clarification, The Courier-Journal received a second letter from Hallahan's physician stating that Hallahan should not be required to bend or lift objects over 20 pounds, or lift his arms above chest level.

On February 9, 2000, company management and human resources personnel met with Hallahan concerning new policy violations occurring after the October 1999 written reprimand that were similar to the prior violations. For instance, on two occasions in early February 2000, Hallahan failed to deliver nine replacement newspapers, and in late January, he again allowed a carrier to be placed on a route without personally orienting him to the route. Hallahan argued that he had not received the messages on his pager about the replacement newspapers and that the carrier was experienced and was familiar with the new route. On February 21, 2000, The Courier-Journal notified Hallahan in writing that he was being terminated for repeated policy violations after having received a prior reprimand and warning concerning additional violations.

II. PROCEDURAL HISTORY

On July 27, 2001, Hallahan filed a complaint for disability discrimination and retaliation pursuant to The Kentucky Civil Rights Act, KRS 344 et seq. He claimed that The Courier-Journal denied him alleged promotions to the State Division Manager, Division Manager in another area, and Single Copy Sales positions, and terminated his employment because of The Courier-Journal's perception about his lower back condition. Hallahan stated that non-disabled employees with less experience and education had been hired for the positions he did not receive.

On April 16, 2002, The Courier-Journal filed a motion for summary judgment arguing that Hallahan had failed to present evidence that he was disabled or regarded as disabled, or that he suffered an adverse employment action because of his alleged disability under the standards applicable to a disability cause of action. The Courier-Journal suggested that Hallahan was terminated because of inadequate job performance. On May 23, 2002, Hallahan filed a response contending there was sufficient evidence that he had been perceived as having a disability and was treated differently because of his lower back condition. He asserted that The Courier-Journal fabricated the claim of inadequate performance in order to justify terminating him. On July 22, 2002, the trial court entered a brief opinion and order denying the motion for summary judgment based on a finding that genuine issues of material fact were in dispute.

In preparation for trial, on October 2, 2002, the parties entered into and filed joint stipulations narrowing the issues. Hallahan stipulated that he did not have a "disability" as defined in the disability discrimination statute while employed at The Courier-Journal, and that his only remaining claim was based on the ground that The Courier-Journal regarded him as having an impairment that substantially limited the major life activity of working. Given Hallahan's abandonment of some of his claims, on November 8, 2002, The Courier-Journal filed a renewed motion for summary judgment. It again argued that there was insufficient evidence that management at The Courier-Journal regarded Hallahan as disabled or that he suffered any adverse treatment in his employment because of an alleged disability. In response, Hallahan asserted that The Courier-Journal's arguments were barred by res judicata because the trial court had previously denied summary judgment raising the same grounds. The Courier-Journal filed a reply stating that res judicata does not apply in this situation.

On February 11, 2003, the trial court entered an opinion and order granting The Courier-Journal's motion for summary judgment and dismissing Hallahan's complaint. The court held that res judicata did not apply because the first order denying summary judgment was not a final order, and there was no evidence showing that The Courier-Journal had perceived...