Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Sch., 19-5767
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | CLAY, Circuit Judge. |
| Citation | 974 F.3d 652 |
| Parties | Cherryl KIRILENKO-ISON; Susan Bauder-Smith, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF DANVILLE INDEPENDENT SCHOOLS, Defendant-Appellee. |
| Docket Number | No. 19-5767,19-5767 |
| Decision Date | 04 September 2020 |
ARGUED: Edward E. Dove, Lexington, Kentucky, for Appellants. Elizabeth A. Deener, LANDRUM & SHOUSE LLP, Lexington, Kentucky, for Appellee. ON BRIEF: Edward E. Dove, Lexington, Kentucky, for Appellants. Elizabeth A. Deener, LANDRUM & SHOUSE LLP, Lexington, Kentucky, for Appellee.
Before: CLAY, ROGERS, and DONALD, Circuit Judges.
Plaintiffs Cherryl Kirilenko-Ison and Susan Bauder-Smith appeal the district court's order granting summary judgment in favor of their former employer, Defendant Board of Education of Danville Independent Schools ("School Board"). Plaintiffs assert that the School Board illegally retaliated against them for their advocacy on behalf of two disabled students, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. , Section 504 of the Rehabilitation Act (" Section 504"), 29 U.S.C. § 701 et seq. , and the Kentucky Civil Rights Act ("KCRA"), Ky. Rev. Stat. § 344. Plaintiffs also claim that the School Board violated the Kentucky Whistleblower Act, Ky. Rev. Stat. § 61.102, by retaliating against them for reporting a parent's suspected child neglect to Kentucky's Cabinet for Families and Children. Plaintiff Kirilenko-Ison further asserts that the School Board failed to accommodate her disability and constructively discharged her, in violation of the ADA and the KCRA. For the reasons that follow, we affirm in part and reverse in part the district court's grant of summary judgment.
Plaintiffs in this case are two nurses who were employed by the Board of Education of Danville Independent Schools at all relevant times. Plaintiff Kirilenko-Ison was a registered nurse, Medicaid billing coordinator, and the health services coordinator for the School Board. Plaintiff Bauder-Smith was a part-time school nurse employed by the School Board. In 2014, the School Board hired Bauder-Smith and another part-time nurse, Nancy Nye, to fill the nursing positions funded by a three-year grant for physical and health education. The crux of Plaintiffs’ complaint is that the School Board retaliated against them for advocating for the rights of two students who are disabled within the meaning of the ADA, Section 504, and the KCRA.
In the 2015–2016 school year, Plaintiffs allegedly advocated for the rights of D.M., a middle school student with type-1 diabetes. According to Plaintiffs, they assisted the school in developing an accommodation plan for D.M. pursuant to Section 504 of the Rehabilitation Act (" § 504 plan"). However, they say that they were unable to adequately care for D.M.’s health because the child's parent neglected her diabetic needs. D.M.’s mother was allegedly noncompliant with the child's health plan at home and would not provide supplies that were necessary for D.M.’s care at school. Because of the mother's noncompliance with the child's medical plan, Kirilenko-Ison and Bauder-Smith discussed filing a complaint with the Cabinet for Families and Children. Plaintiffs say that they told the School Board about their concerns regarding D.M.’s care but that they received little or no support. The superintendent of the school system, Keith Look, told them not to file a complaint with the Cabinet.
In May 2016, D.M.’s mother requested that Plaintiffs no longer be allowed to provide care for D.M. Plaintiffs then filed a complaint with the Cabinet, in which they reported D.M.’s mother for suspected neglect. In response, D.M.’s mother submitted a complaint to the School Board regarding Plaintiffs. This triggered an informal inquiry into the situation regarding D.M.’s care, in which Superintendent Look asked Plaintiffs to write a report about what happened.
Following the situation with D.M., the School Board did not take any immediate retaliatory actions against Plaintiffs. At the end of the 2015–2016 school year, Kirilenko-Ison's annual contract was renewed for the upcoming 2016–2017 school year and Bauder-Smith's three-year contract remained intact.
During the 2016–2017 school year, Plaintiffs assisted with the medical care of C.J., an elementary school student who had recently been diagnosed with diabetes
. In September 2016, Plaintiffs attended a meeting with C.J.’s mother to develop a § 504 plan for C.J. ("first § 504 meeting"). Robin Kelly (the principal of the school), Lindsay Carpenter (the student's teacher), and Nye also attended the meeting. The attendees formulated a § 504 plan in accordance with C.J.’s Diabetic Management Plan ("DMMP"), which had been developed by his doctors.
Following this first § 504 meeting, Plaintiffs and C.J.’s mother began to have various disagreements about how to implement the plan. There were two primary points of disagreement between Plaintiffs and C.J.’s mother: one relating to the child's ability to eat breakfast at school and another relating to his ability to ride the school bus.
In her deposition, Kirilenko-Ison explained that C.J.’s meals should be at least four hours apart or else there is a risk of "insulin stacking, which causes harm to the child and causes low—extremely low blood sugar, which was occurring in the afternoons." (Kirilenko-Ison Dep., R. 30-2, Pg. ID 149.) C.J. would usually arrive late to school without having eaten breakfast, and there was not enough time to permit him to eat breakfast at school and then have a four-hour block of time without insulin before lunch. Plaintiffs therefore encouraged C.J.’s mother to have him eat breakfast at home before arriving to school. However, C.J.’s mother insisted that C.J. be allowed to "eat a regular breakfast at school." (Id. )
Defendant says that permitting C.J. to eat breakfast at school was in full compliance with C.J.’s § 504 plan and DMMP. But Plaintiffs say that allowing C.J. to eat breakfast at school would have been detrimental to his health due to the risk of insulin stacking and would have placed their nursing licenses in jeopardy.
Plaintiffs and C.J.’s mother also disagreed about C.J.’s participation in various school activities, including riding the school bus. It appears that Plaintiffs did not want C.J. to ride the bus if his glucose levels were low because he could go into a hypoglycemic episode. However, according to Plaintiffs, C.J.’s mother insisted that he be permitted to ride the bus "no matter what his blood glucose levels were," and that he be able to go to his other school activities "while in a hypoglycemic state." (Id. )
On October 14, 2016, a second meeting was held to revise C.J.’s § 504 plan ("second § 504 meeting"). Plaintiffs, Nye, Kelly, Carpenter, and C.J.’s mother again attended the meeting. During the meeting, Bauder-Smith presented a hypothetical to C.J.’s mother, in which she asked "if [C.J.’s] blood sugar is low and he goes back to class and falls down and is unconscious, then who is going to be responsible because he was allowed to go back to class." (Id. at Pg. ID 159.) C.J.’s mother then abruptly left the meeting, and no new § 504 plan was developed.
At that point, Kelly reprimanded Plaintiffs. According to Kirilenko-Ison, Kelly "was screaming at [her] about doing what the parent wants and she didn't care about [her] nursing license, which really she was talking to all the nurses, and that we're going to do what the parent wants." (Id. ) According to Bauder-Smith, "Robin Kelly sided with the mother and said directly to [Kirilenko-Ison], but meaning all three of [the nurses], that we're going to do what the parent wants, that she's in the district, [the parent is] not going anywhere." (Bauder-Smith Dep., R. 30-3, Pg. ID 202.)
After the second § 504 meeting, C.J.’s mother wrote a detailed complaint against Kirilenko-Ison, and Kirilenko-Ison was taken off the case. The school staff then held a third § 504 meeting with C.J.’s mother, but neither Plaintiff was invited to attend the meeting ("third § 504 meeting"). The third meeting resulted in a new § 504 plan for C.J., which Plaintiffs reviewed and, subsequent to revisions, effectively approved.
At some point in November 2016, Nancy Nye resigned from her part-time nursing position with the school. Her resignation letter lists several reasons why she felt compelled to resign:
(Nye Letter, R. 34-7, Pg. ID 427.)
In an email to Ed McKinney in December 2016, Bauder-Smith said that she would no longer provide care to C.J.:
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