Koch v. Thames Healthcare Grp., LLC

• Decision Date: 31 March 2020
• Docket Number: CIVIL ACTION NO. 1:18-CV-00039-GNS-HBB
• Parties: AMITY M. KOCH PLAINTIFF v. THAMES HEALTHCARE GROUP, LLC DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

AMITY M. KOCH PLAINTIFF v. THAMES HEALTHCARE GROUP, LLC DEFENDANT

CIVIL ACTION NO. 1:18-CV-00039-GNS-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION

March 31, 2020

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant's Motion for Summary Judgment (DN 24) and Motions in Limine (DN 25, 26) and Plaintiff's Motions in Limine (DN 27). For the reasons that follow, Defendant's motion for summary judgment is GRANTED, and all other motions are DENIED.

I. BACKGROUND

Plaintiff Amity Koch ("Koch") brings this action against Defendant Thames Healthcare Group, LLC ("Thames") asserting claims of disability discrimination and retaliation under the Kentucky Civil Rights Act ("KCRA"), Kentucky Revised Statute ("KRS") Chapter 344, and interference and retaliation claims under the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654. (Compl. ¶¶ 18-31, DN 1-2).

Koch was first employed by Thames as nurse on April 5, 2016, at its Greenwood Nursing and Rehabilitation Center ("Greenwood"). (Def.'s Mot. Summ. J. Ex. B, at 2, DN 24-3; Pl.'s Resp. Def.'s Mot. Summ. J. 3, DN 32). On June 28, 2016, Koch received a final disciplinary warning for which she was given a 30-day probationary period based on her chronic absenteeism and for other general conduct. (Def.'s Mot. Summ. J. Ex. B). The notice stated:

Employee has had 3 absences and 2 tardies since hire date on April 5 2016. It is important that employee be at work and be on time. Any further absence or tardy in the next 30 days will result in automatic termination. Please be aware of how you talk [to] other staff members. All staff are expected to treat each other with dignity and respect.

(Def.'s Mot. Summ. J. Ex. B, at 2).

On September 1, 2017, Greenwood's Director of Nursing, Amanda Steffey ("Steffey"), prepared a memorandum regarding attendance issues which Koch had experienced in January 2017:

The last day actually worked by employee, Amity Koch RN, during her first hire at Greenwood Nursing and Rehab was Saturday, January 28^th 2017.

Employee had been working night shift for several weeks after she had requested to step down from being the weekend treatment nurse. She accepted an open position as an RN on our Long Term Care unit for 11p-7a. Employee had started that position on Tuesday, January 3^rd 2017 as agreed to. Amity continued to work that position until Friday, January 20^th 2017 when she requested to be PRN because she did not wish to be full time anymore. Amity did work approximately 20 more hours at the facility after that date up to January 28^th 2017.

All employees are scheduled to do change over at the end of each month. This entailed coming in to the facility and checking Medication Administration Records for the next month. Employee was scheduled for routine change-over assignments on January 31^st 2017 and employee refused to perform her duties. When the Assistant Director of Nursing contacted her via text, employee responded stating, "I told Margaret I would be busy thru the end of the month." After speaking with Margaret, staff facilitator, she had no record of employee being out of town or requesting off during that time period.

Amity was made aware that she had not notified anyone that she would be [un]able to perform her duties. Amity responded, "I've limited the amount of time spen[t] in helping this facility out with incompetence." After this, employee did not work any hours to continue employment. Per policy, after 30 days of not having hours worked, employee is terminated from the system.

Employee was not terminated by facility due to disciplinary actions etc.

(Def.'s Mot. Summ. J. Ex. A, at 2, DN 24-2; Pl.'s Resp. Def.'s Mot. Summ. J. 3).

Koch did not work at Greenwood from late January until April 2017, when she returned and "was placed on a probationary period upon rehire for her absenteeism." (Steffey Dep. 36:24-37:5, 72:25-73:7, May 16, 2019, DN 32-4). On April 28, 2017, Koch received another disciplinary warning and was suspended for two days for leaving work without permission. (Def.'s Mot. Summ. J. Ex. E, at 2, DN 24-6). On July 31, 2017, Koch was counseled because she had three or more unexcused absences and was advised that she would have to bring in a doctor's note for absences. (Def.'s Mot. Summ. J. Ex. D, at 2, DN 24-5).

On August 14, 2017, Koch was scheduled to work but did not show. (Def.'s Mot. Summ. J. Ex. H, at 2, DN 24-9). Instead she sent a text message to Steffey at 7:24 a.m. that Koch had an appointment for EMG testing at 8:30 that morning. (Def.'s Mot. Summ. J. Ex. J, at 2, DN 24-11; Steffey Dep. 27:1-9; Koch Dep. 118:6-119:23, Feb. 11, 2019, DN 24-10). Steffey asked what time Koch would be at work that day, to which Koch replied, "Right after it's done, they said it doesn't take long[.]" (Def.'s Mot. Summ. J. Ex. J, at 2). Koch did not communicate further with Steffey and did not report to work at all that day.¹ (Def.'s Mot. Summ. J. Ex. J, at 2).

Koch was scheduled to work on August 15, but did not report to work that day either. (Def.'s Mot. Summ. J. Ex. H, at 2). Koch's phone records show a one-minute call to Steffey's number that day at 6:52 a.m. (Def.'s Mot. Summ. J. Ex. R, at 4). Steffey denies having spoken to Koch at that time or receiving a message from her, but conceded that poor cellular service at her home may have prevented the call from going through. (Steffey Dep. 67:1-10). Koch claims that she told Steffey that she "wouldn't be coming in the rest of th[e] week[,]" but there is nothing toindicate that Koch gave a reason for that absence. (Koch Dep. 142:21-143:4). Steffey filled out a disciplinary notice indicating Koch would be discharged for chronic absenteeism and her failure to notify her supervisor for one of the absences, but did not officially submit that form. (Def.'s Mot. Summ. J. Ex. O, at 2, DN 24-16). Steffey had daily conversations regarding Koch's absenteeism with Greenwood Administrator Jonathan McGuire ("McGuire"), who was responsible for making firing decisions. (Steffey Dep. 18:9-12, 29:24-30:2). While the August 15 disciplinary notice stated Koch would be fired after two no-call/no-shows, Steffey hoped that Koch would contact her before the formal termination occurred. (Steffey Dep. 26:7-10, 27:22-28:4, 39:21-25).

Koch was also scheduled to work on August 16, 2017, but again did not show up. (Def.'s Mot. Summ. J. Ex. H, at 2). Koch claims she sent Steffey a text message at 6:27 p.m. that day, stating: "I've been afraid to leave my house this week. My NP put me on a $1000/mo. med and ran out of samples, it hit me hard Sunday."² (Pl.'s Resp. Def.'s Mot. Summ. J. Ex., at 3, DN 32-8; Def.'s Mot. Summ. J. Ex. R, at 3). Screenshots of Steffey's text messages do not reflect this message and Steffey denied receiving it. (Def.'s Mot. Summ. J. Ex. J, at 2-4; Steffey Dep. 56:14-20, 83:11-16).

Koch was also scheduled to work on August 17, 2017, and again did not show up. (Def.'s Mot. Summ. J. Ex. H, at 2). Steffey completed another written disciplinary notice due to Koch's failure to work as scheduled on August 14-16 indicating that Koch would be terminated for those absences. (Def.'s Mot. Summ. J. Ex. L, at 2, DN 24-13). This time, after a discussion withMcGuire and Assistant Director of Nursing Nicole Jessie ("Jessie"), Steffey submitted Koch's termination paperwork to human resources. (Steffey Dep. 27:22-29:6).

Koch sent a text message sent to Steffey at 5:50 p.m. on August 17 asking: "Can I come back?" (Pl.'s Resp. Def.'s Mot. Summ. J. Ex., at 3, DN 32-8; Def.'s Mot. Summ. J. Ex. R, at 7). Steffey testified that she attempted to call Koch three separate times between August 14 and 18, but believed that Koch blocked her number. (Steffey Dep. 62:19-64:23). On August 18, 2017, Koch left a letter on Steffey's desk from Koch's medical care provider, APRN and PMHNP Cindy Lemon ("Lemon"), stating:

I have been seeing Amity for ADHD and Major Depressive disorder and providing medication management/individual psychotherapy. During the time we have been waiting on insurance to pay for her medication, we were also out of samples and were unable to provide her with her medication. We are now able to provide the medication and ask that you please excuse Amity Koch from work for dates August 14, 2017 to August 18, 2017.

(Pl.'s Resp. Def.'s Mot. Summ. J. 11; Def.'s Mot. Summ. J. Ex. P, at 2, DN 24-17; Steffey Dep. 26:11-15). Koch sent text messages to Steffey on August 18 and 19 asking if Steffey had received the letter. (Pl.'s Resp. Def.'s Mot. Summ. J. Ex., at 4, DN 32-8; Def.'s Mot. Summ. J. Ex. R, at 21; Pl.'s Resp. Def.'s Mot. Summ. J. Ex., at 4, DN 32-8). Although Koch claims she left voicemails for Jessie and Steffey on August 19 asking for confirmation that she could come into work on August 21, Jessie and Steffey denied receiving messages from Koch. (Def.'s Mot. Summ. J. Ex. R, at 5; Pl.'s Resp. Def.'s Mot. Summ. J. 3; Koch Dep. 146:22-147:21; Jessie Dep. 11:24-12:20, May 16, 2019, DN 24-22; Steffey Dep. 68:16-69:12). Koch was officially terminated on August 20 based on Steffey's August 17 recommendation. (Def.'s Mot. Summ. J. Ex. N, at 2, DN 24-15).

Koch brought the current KCRA and FMLA action in Kentucky state court on February 20, 2018. (Compl. 6). Thames removed the action to this Court on April 2, 2018. (NoticeRemoval 2, DN 1). Thames has filed a motion for summary judgment seeking dismissal of all of Koch's claims. (Def.'s Mot. Summ. J. 3, DN 24).

II. JURISDICTION

Jurisdiction in this action is based on federal question and supplemental jurisdiction. Koch asserts claims under federal law, specifically, the FMLA. See 28 U.S.C. § 1331; (Compl. ¶¶ 28-31, DN 1-2; Mem. Supp. Removal 5-6, DN 1-1). Supplemental jurisdiction affords jurisdiction over Koch's state law KCRA claims. See 28 U.S.C. § 1367(a).

III. STANDARD OF REVIEW

In ruling on a motion for summary judgment, the Court must determine whether there is any genuine issue of material fact that would preclude...