Kenney v. Bd. of Trs. of Univ. of Ark.

Decision Date30 October 2020
Docket NumberCase No. 4:18-cv-00882-KGB
CourtU.S. District Court — Eastern District of Arkansas

Before the Court is a motion for summary judgment filed by defendant the Board of Trustees of the University of Arkansas (the "University") (Dkt. No. 17). Plaintiff Kimberly Kenney has filed a response to the motion (Dkt. No. 23). The University has filed a reply to the response (Dkt. No. 26). For the following reasons, the Court grants the University's motion for summary judgment (Dkt. No. 17).

I. Factual Background

Ms. Kenney brings this civil rights action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq.; the Fourteenth Amendment to the United States Constitution; 42 U.S.C. § 1983;1 the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101; Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 791, et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq.; and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. (Dkt. No. 1, at 1-2). Ms. Kenney alleges four counts of unlawful employment practices against the University: (1) violation of Title VII, including discrimination based on her race and retaliation; (2) violation of the ADA and the RA,including discrimination against her as a result of being regarded as disabled under the ADA and retaliation for having complained about discriminatory treatment based on her disability; (3) violation of the FMLA, including interfering with, restraining, or denying her rights under the act and retaliating against her for attempting to exercise her rights under the act; and (4) violation of the ADEA, including discrimination against her on the basis of her age (Id., ¶¶ 24-56). As relief, Ms. Kenney seeks in her complaint a declaratory judgment; a Court Order reinstating her employment; full front pay; full back pay; compensatory damages for the humiliation, emotional distress, and other damages caused by the University's conduct; punitive damages for the University's malicious and recklessly indifferent conduct; all employment benefits she would have enjoyed had she not been discriminated against; expenses of litigation, including reasonable attorney's fees; a jury trial; and all other relief the Court deems just and proper and to which she might be entitled (Id., at 2, 10-11). When asked in her deposition whether she wanted her job back, Ms. Kenney answered, "At this time, I don't want to answer that" and that she "[didn't] know at this time." (Dkt. No. 24, ¶ 57).

Ms. Kenney, a 52-year-old African-American female, began working at University of Arkansas at Little Rock ("UALR") in 2004 as a custodial worker in the Facilities Management Department (Dkt. No. 24, ¶¶ 1-2). In the Fall 2011, Ms. Kenney began having problems with pain in her knees and was diagnosed with degenerative joint disease (Id., ¶ 3). Ms. Kenney claims that this condition created episodic pain flare-ups for which she requested and received the ability to take intermittent leave time under the FMLA (Id., ¶ 4). Ms. Kenney also claims that she needed regular breaks while working, and she requested and received accommodation under the ADA to take 15-minute hourly breaks (Id., ¶ 5). For both requests, Ms. Kenney's treating physician was asked to complete a medical certification form detailing the need for leave or accommodation (Id.,¶ 6). All renewals were granted (Id.). Ms. Kenney remained on consecutive FMLA leave periods from her initial request in 2011 until her termination in 2018 (Id., ¶ 7).

Ms. Kenney made a second request under the ADA in May 2012 for a closer parking space (Id., ¶ 8). Human Resources Director Annette Tangye told Ms. Kenney how to obtain the parking pass and informed her that she would need to provide the necessary medical certification for the request (Id., ¶ 9). Ms. Kenney was never willing to provide this information and did not receive the pass, but she did obtain a disabled parking sticker which granted her access to all lots where spaces were available (Id., ¶¶ 9-10). Her requested accommodation for breaks on the job was renewed during that same time (Id., ¶ 11).

On September 12, 2014, Ms. Kenney was admonished by her supervisor to take out the trash, and on September 18, 2014, Ms. Kenney reported a back injury due to this task (Id., ¶ 12). Ms. Kenney's physician, Dr. Melnyk, requested that she be relieved from lifting anything over 25 pounds (Id., ¶ 13). The request did not state that Ms. Kenney was restricted to daytime work, though Ms. Kenney contends that she had already been given an accommodation working 8:00 a.m. to 5:00 p.m. at the Donaghey Student Center ("DSC") (Id.). Because custodial services did not offer light duty positions, Ms. Kenney could not return to work in that department (Id., ¶ 14).

As an accommodation for her back injury and the lifting restriction, Human Resources ("HR") began exploring other positions on campus for which Ms. Kenney might qualify (Id., ¶ 15). Ms. Kenney was initially offered a job as a "dispatcher" in the police department, which she declined (Id., ¶ 75). On September 29, 2014, HR notified Ms. Kenney that as an accommodation under the ADA she would be transferred to a position which had been specially created for her—a desk job as Security/Parking Assistant in the Police Department stationed at the DSC—effective October 16, 2014 (Dkt. Nos. 17-3, at 13; 24, ¶¶ 15, 23, 75). Attached to the notice was a jobdescription listing her duties and responsibilities which included that she have "the ability to work a flexible schedule, which includes nights and weekends" (Dkt. No. 24, ¶ 16). Ms. Kenney asserts that she was given a position at the DSC Monday through Thursday from 10:00 a.m. to 7:00 p.m. and the main police station from 8:00 a.m. to 5:00 p.m. on Friday (Id.).

On September 30, 2014, Ms. Kenney signed an additional agreement providing that the need for break times would be eliminated as an ADA accommodation (Id., ¶ 17). The agreement stated that any request for an alternative accommodation would need to be accompanied by appropriate medical certification and an updated ADA accommodation request form (Dkt. Nos. 17-3, at 17; 24, ¶ 17). Ms. Kenney denies that she was required to provide updated medical documentation unless she was asking for a reassignment (Dkt. No. 24, ¶ 17).

On September 29, 2017, Ms. Kenney was granted FMLA intermittent leave for one year, to expire on September 29, 2018 (Dkt. No. 24, ¶ 22). This renewal represented the last renewal of her FMLA leave and was in place until she left UALR in August 2018 (Id., ¶¶ 18, 22).

After two years at the DSC, Ms. Kenney was moved to Stabler Hall in approximately 2016 (Id., ¶¶ 25, 77). The University maintains that Ms. Kenney was moved to Stabler Hall due to a greater need for someone staffing the front desk, but Ms. Kenney claims that there was nothing to do at the Stabler Hall job (Id., ¶ 25). During her station at Stabler Hall, Ms. Kenney was required to monitor the traffic flow in the traffic loop outside the building for a few hours (Id., ¶ 26). Chief Regina Carter2 also worked the traffic loop when needed (Id.). Chief Carter testified that there were problems, difficulties, and complaints about Ms. Kenney's performance of her Stabler Hall duties (Dkt. No. 17-2, at 11-12).

On November 30, 2017, Ms. Kenney, Employee Relations Manager Cynthia Mahan, and Patrol Commander Lieutenant Jerome F. Bailey met to discuss Ms. Kenney's complaints that her job duties were discriminatory and retaliatory (Dkt. No. 17-3, at 24-26; 24, ¶ 27). Ms. Kenney also noted her medical disabilities (Dkt. No. 17-3, at 25; 24, ¶ 27). The following day, Ms. Mayhan provided Ms. Kenney with information to file both her discrimination complaint and any request for accommodation and followed up with this information in several emails (Dkt. No. 24, ¶ 28). Ms. Mayhan emphasized that Ms. Kenney's FMLA leave was still in place but that the ADA process and FMLA process required separate documentation (Id., ¶ 29). Ms. Kenney did not follow up with an employment grievance or ADA request at that time (Id.).

On July 11, 2018, Lt. Bailey notified Ms. Kenney that the athletics department would be taking over the police substation in Stabler Hall (Id., ¶ 30). Accordingly, Ms. Kenney would be moved to the newly renovated substation located on Fair Park Boulevard, effective August 1, 2018, and assigned to the 3:00 p.m. to 11:00 p.m. shift with Sunday and Monday as her days off (Id.). In the interim, Ms. Kenney worked for a few weeks in a temporary station at the University Village booth (Id., ¶ 31).

On July 24, 2018, Ms. Kenney emailed Chief Carter and Ms. Mayhan with a number of complaints about her new assignment (Id.). Ms. Kenney claimed the move was "without reasonable cause," discriminatory, and that there were "conflicts of interest and complications due to FMLA" and working a night shift (Id.). Chief Carter contacted Ms. Mayhan by phone, and Ms. Mayhan said she would handle the complaint per HR policy (Id., ¶ 32). Other than what was contained in that email, Chief Carter had no knowledge of Ms. Kenney's accommodation request (Id., ¶ 71).

Ms. Mayhan unsuccessfully attempted to reach Ms. Kenney the next day, and Ms. Kenney responded five days later on July 30, 2018 (Id., ¶ 33). That same day, Ms. Mayhan emailed Ms. Kenney asking her to schedule an appointment to discuss her complaint, gave her information about the reasons for her new job assignment, and provided a link for making an accommodation request (Id., ¶ 34).

On July 31, 2018, Ms. Kenney submitted an ADA accommodation request form stating that she could not drive or work at night due to the medication she was taking (Id., ¶ 35). Ms. Mayhan responded and requested that Ms. Kenney submit the...

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