Hammond v. Norton Healthcare, Inc., 2011-CA-000586-MR
| Decision Date | 19 October 2012 |
| Docket Number | NO. 2011-CA-000586-MR,2011-CA-000586-MR |
| Parties | LOUISE HAMMOND APPELLANT v. NORTON HEALTHCARE, INC. APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
Hammond is a registered nurse who began working for Norton in 1978. She retired for one year in 1995, but returned to Norton in 1996. In July 2005, Hammond was assigned to the 7:00 pm to 7:00 am shift in the oncology unit of the hospital. Hammond's duties during her shift included completing rounds on nine patients to check each patient's status, check breathing by counting respirations, administer medications, and provide any other necessary treatments. Hammond was required to perform at least one assessment per patient during her shift and document the results in the hospital's computer. The results were utilized by nurses and doctors on subsequent shifts to monitor patient health status.
On July 12, 2005, a patient allegedly complained to Kim Forsythe, a Clinical Nurse Manager, that Hammond had not completed an assessment on her the previous night. The patient reported that Hammond rolled up to the doorway of her room on a rolling desk chair, but never physically entered the room. However, when Forsythe reviewed the patient's file she found that Hammond had entered results of a complete assessment, including a notation that she had listened to the patient's lung and bowel sounds.
The following day, Hammond met with Forsythe, as well as another nursing director, Pam Missi, and an employee relations manager, Lauren Berger. Although Hammond was informed of the patient's complaint, she was never told the identity of the patient or shown the assessment record. In fact, Hammond states that themajority of the meeting concerned her use of an office rolling chair to move about the hallways because severe arthritis in her knees made it difficult to walk. A July 14, 2005, Counseling Record, a form of written discipline, reflected that as a result of the patient's complaint, Hammond received "written counseling" and was placed on administrative leave for two days. Further, the Counseling Record documented the "Specific Improvement Goals/Expected Outcome" as:
At the end of her administrative leave, Hammond again met with Forsythe, Missi and Berger. At that time, she was presented with the July 14th Counseling Record, but it had been modified to reflect that upon "further investigation" Hammond was to be terminated. Hammond's termination was effective July 19, 2005.
On July 2, 2007, Hammond filed an action against Norton in the Jefferson Circuit Court alleging that her termination was the result of disability discrimination under Kentucky's Civil Rights Act, KRS Chapter 344. Hammond claimed that her disability, arthritis in her knees that substantially impacted her ability to walk, sit and stand, was the primary reason she was terminated. Norton thereafter filed a motion for summary judgment on the grounds that Hammond had not established a prima facie case of discrimination, and further that she could notrebut Norton's legitimate non-discriminatory reason for her termination - the improper patient assessment and falsification of medical records.
On November 18, 2010, the trial court entered a fourteen-page opinion and order granting Norton's motion and dismissing Hammond's claims. The trial court found that although Hammond proved that she was a "qualified individual with a disability," she nevertheless failed to demonstrate that she was discharged solely because of that disability:
Mrs. Hammond contends that the sole reason for her termination is her disability and that this is evident from the fact that much of the discussion in the July 15, 2005, counseling session was about her use of the rolling chair. However, the counseling record presented to her makes it clear that the problem was not her issue of the rolling chair. Norton terminated Mrs. Hammond for failing to assess a patient properly and falsifying medical records by documenting that she had assessed certain physical conditions without actually touching or examining the patient. The Court is satisfied that Mrs. Hammond was not terminated solely due to her disability. Norton has offered a legitimate reason for its termination . . . .
Hammond's motion for reconsideration was denied and this appeal ensued.
Our standard of review on appeal of a summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled tojudgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id. Finally, since summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
Hammond argues in this Court that the trial court erroneously granted summary judgment on the basis that her disability was not the "sole reason" for her termination, rather than utilizing a mixed-motive standard to uphold her claim. Norton responds that although the trial court properly found that Hammond's termination was not because of her disability, it erred in finding that she was a qualified individual with a disability. Norton claims that Hammond's arthritis did not rise to the level of a disability and further that she was not qualified to perform the required duties of her job.
The Kentucky Civil Rights Act ("KCRA"), KRS Chapter 344, provides that it is unlawful "to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment . . . [when] the person is a qualified individual with a disability . . . ."KRS 344.040(1)(a). One of the purposes of the KCRA is to "provide for execution within the state of the policies embodied in ... the Americans with Disabilities Act of 1990 ("ADA") . . ." as well as the other federal civil rights acts. KRS 344.020(1). Accordingly, Kentucky courts have interpreted the KCRA consistently with the ADA and federal law. Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003).
The ADA prohibits covered entities from discriminating against "a qualified individual on the basis of disability" in terms of employment. 42 United States Code (U.S.C.) § 12112(a). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Both the ADA and the KCRA define "disability" as:
KRS 344.010(4); see also 42 U.S.C. § 12102(1).
In Hallahan v. The Courier-Journal, 138 S.W.3d 699, 706-07 (Ky. App. 2004), a panel of this Court held that to establish a prima facie case of disability discrimination, a plaintiff must show: (1) that he had a disability as that term is used under the KCRA; (2) that he was "otherwise qualified" to perform therequirements of the job, with or without reasonable accommodation; and (3) that he suffered an adverse employment decision because of the disability. See also Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 552-53 (6th Cir. 2004). By establishing a prima facie case, the plaintiff shifts the burden to the employer to offer a legitimate, non-discriminatory reason for the adverse decision. The burden then shifts back to the plaintiff, who must show that the employer's proffered reason is pretextual and that the real reason for the adverse decision was discrimination. Id.
Hammond does not dispute that she had the burden of showing that her termination was due to her disability. However, she maintains that she only needed to demonstrate that such was a substantial motivating factor rather than the sole reason for Norton's action. For the reasons that follow, we conclude that neither standard is appropriate.
The trial court herein applied the standard adopted by the Sixth Circuit and Kentucky federal district courts. In Brohm v. JH Properties, Inc., 149 F.3d 517 (6th Cir. 1998), the appellate court noted that to prevail on a disability discrimination claim under either the ADA or KCRA, a plaintiff must prove that he was terminated "solely by...
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