Laws v. HealthSouth Northern Kentucky Rehab. Hosp. Ltd. P'ship

• Citation: 828 F.Supp.2d 889,44 NDLR P 67
• Decision Date: 01 November 2011
• Docket Number: Civil Action No. 2009–220(WOB–JGW).
• Parties: Kathleen LAWS, Plaintiff v. HEALTHSOUTH NORTHERN KENTUCKY REHABILITATION HOSPITAL LIMITED PARTNERSHIP d/b/a HealthSouth Kentucky Rehabilitation Hospital, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

44 NDLR P 67

828 F.Supp.2d 889

Kathleen LAWS, Plaintiff

v.HEALTHSOUTH NORTHERN KENTUCKY REHABILITATION HOSPITAL LIMITED PARTNERSHIP d/b/a HealthSouth Kentucky Rehabilitation Hospital, Defendant.

Civil Action No. 2009–220(WOB–JGW).

United States District Court, E.D. Kentucky,Northern Division,at Covington.

Nov. 1, 2011.

Kelly Mulloy Myers, Sheila M. Smith, Tod J. Thompson, Freking & Betz, Cincinnati, OH, for Plaintiff.

Robert D. Hudson, Amy M. Miller–Mitchell, Frost, Brown, Todd, LLC, Florence, KY, for Defendant.

OPINION AND ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT

WILLIAM O. BERTELSMAN, District Judge.

This matter is before the court on Defendant's motion for summary judgment. (Doc. # 22).¹ Having previously heard oral argument, and having taken the matter under submission (Doc. # 42), the court now issues the following Opinion and Order.

Introduction

Plaintiff Kathleen Laws worked as a licensed practical nurse at HealthSouth Kentucky Rehabilitation Hospital (hereinafter “HealthSouth” or “Defendant”) for almost a decade before she was fired in October 2008. She characterizes Defendant's disciplinary actions and decision to dismiss her as “unwarranted” and “retaliatory.” After filing a charge with the Equal Employment Opportunity Commission and receiving a right to sue letter, she filed the instant action. See Doc. # 1 at 2 (hereinafter “Complaint”); Doc. # 6 at 2.

Plaintiff claims HealthSouth's actions amount to discriminatory conduct under the Americans with Disabilities Act (hereinafter “ADA”), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act (hereinafter “ADEA”), 29 U.S.C. § 621 et seq., and the Kentucky Civil Rights Act (hereinafter “KCRA”), the state counterpart to those two federal statutes, Ky.Rev.Stat. § 344.040. See Complaint at 4–7 (Counts I, II, V, VI). She further claims the actions amount to retaliation and interference in violation of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., and § 510 of the Employment Retirement Income Security Act of 1974 (hereinafter “ERISA”), 29 U.S.C. § 1140. See Complaint at 5–6 (Counts III, IV).

Defendant moves for summary judgment on each claim. For the reasons below, the Court grants the motion and dismisses this action with prejudice.

Factual Background

Among other facilities, HealthSouth operates a rehabilitation hospital in Edgewood, Kentucky, that offers both in-patient and some out-patient services. See Doc. # 27–1 at 11 (hereinafter “Fey Depo.”). Plaintiff began working there in 1999 and was responsible for direct patient care.

Lynn Edmondson was Plaintiff's direct supervisor. See Doc. # 36 at 4–5 (hereinafter “Edmondson Depo.”). Chief Nursing Officer (hereinafter “CNO”) Debra Fey was Edmondson's direct supervisor as of May 2008. Prior to that, other individuals served as Edmondson's direct supervisor in the CNO capacity. See id. at 2, 4, 5, 9. CNO Fey had many responsibilities, but primarily oversaw “clinical staff,” including “nurses and non-nursing professionals, such as nursing assistants or techs.” Fey Depo. at 11–13.

CNO Fey and Human Resources Director (hereinafter “HRD”) Diane Goldschmidt reported directly to HealthSouth's Chief Executive Officer (“CEO”) Brenda Gosney. See Doc. # 26–1 at 11 (hereinafter “Goldschmidt Depo.”); Fey Depo. at 16. Part of HRD Goldschmidt's duties included being the “liaison to the corporate office” in Alabama. As such, she interacted with Regional Director of Human Resources for the Mid–Atlantic Region Joseph Koehler. See Goldschmidt Depo. at 11–12; see also Doc. # 24–1 at 8 (hereinafter “Koehler Depo.”); Doc. # 22–6 at 1, ¶ 1. (hereinafter “Koehler Aff.”).² In her liaison capacity, HRD Goldschmidt forwarded employee requests for FMLA leave to the corporate office for approval. See Goldschmidt Depo. at 11–12. She also maintained employee files at HealthSouth and reviewed disciplinary interventions taken by supervisors for consistency with corporate policy and antidiscrimination laws. See id. at 12–14, 17–18.

A. 2003 & 2004—Room For Improvement

Before her health problems began, Plaintiff's evaluations reflected two areas where she could improve her performance—attendance and responding appropriately when frustrated. On April 29, 2003, for example, Plaintiff received verbal counseling regarding “call-ins 3/13, 3/28, 4/2, 4/14, 4/20,” and failing to “report to work when schedule[d].” Doc. # 25–2 at 16, 17 (hereinafter “Dismissal Request Exhs.”). The supervisor responsible for this counseling was Lynn Bean. See Edmondson Depo. at 3–4, 9. Plaintiff did not indicate on the disciplinary form whether she “agreed” or “disagreed,” but did sign it. See Dismissal Request Exhs. at 16, 17.

In her 2004 annual performance appraisal, Plaintiff received a “3” in all areas, which meant she “consistently” met the “expectations of the position.” See Doc. # 25–4 at 5. However, she also received a “2” for “attendance regularity and punctuality in reporting to work and returning from breaks ... 7 occurrences.” Id. at 6. The “2” signified that she did “not meet all expectations” and “improvement ... is needed.” Id. at 7. The “areas for improvement” section noted she should only take “the allowed 2 breaks and return on time as well as from meals,” id. at 6, and the “performance improvement action plan section” listed the goal that Plaintiff “improve [her] attendance,” id. at 7. Plaintiff wrote that she “always” came back from meals on time,” id. at 6, but also wrote “yes!” next to the goal of improving attendance, id. at 7.

Another area noted for improvement was for Plaintiff to “keep [her] cool when frustrated with physician,” which is underlined. Id. at 6. Plaintiff signed the form. Id. at 8.

B. 2005—Aneurysm Surgery

The year 2005 marked the onset of health issues for the Laws family. In April, Plaintiff's husband was diagnosed with cancer and he underwent radiation treatment from the end of the year through the beginning of 2006. Starting in 2007, he began receiving thrice-yearly shots for his condition, and evidently continues to receive them. See Doc. # 31–1 at 1, ¶¶ 1–3 (hereinafter “Laws Aff.”).

In June 2005, Plaintiff developed an aneurysm behind her left eye when an artery ballooned to the “size of a walnut.” See Doc. # 23–1 at 30–31 (hereinafter “Laws Depo.”). She was hospitalized for two weeks and then underwent surgery in early July. The procedure involved placement of a “stent.” She was later readmitted for complications with her eye. All together, she took four months leave from June 2005 through September 2005. She used FMLA leave for this purpose but because the aneurysm came on suddenly and resulted in hospitalization, she did not recall exactly how the paperwork was processed. She believed her surgeons submitted it. See id. at 22, 24–25, 35; Laws Aff. ¶¶ 4–6; Doc. # 36–1 at 5 (hereinafter “FMLA & Evaluations Exhs.”).

Plaintiff signed her annual performance review when she returned to work in late October 2005. See FMLA & Evaluations Exhs. at 10.³ It again assessed her with a “3” in all areas, meaning performance as expected, and also gave her a “4” in “job knowledge,” meaning “outstanding performance that clearly exceeds expectations of the position.” Id. at 9. A continued “area for improvement,” however, was to “keep [her] cool when frustrated with physician,” id. at 8, with the action plan to “be calm and professional even when frustrated,” id. at 9.

The resulting conditions due to the aneurysm and surgeries were headaches, reduced vision in the left eye, and lack of endurance. Plaintiff had no cognitive effects, however, and her eyesight did not impact her ability to work or perform her normal daily activities. See Laws Depo. at 30–33. In addition, the headaches were not a permanent or chronic condition. See id. at 25–26. Plaintiff's main complaint was lack of endurance, which she attributed to the effects of anesthesia after her two procedures. See id. at 31.

C. 2006—“Call–In” Problems & Second FMLA Leave Request

Before her second surgery in July 2006, on April 3, 2006, Plaintiff received “verbal counseling” for the “violation” of missing work on March 30, 2006. See Dismissal Request Exhs. at 14, 15. At that time, Supervisor Edmondson was responsible for scheduling nurses' work shifts and, thus, responsible for tracking Plaintiff's “tardies” and “absences” and reporting them to her supervisor, Jenna Wellbrock. Ms. Wellbrock, acting as CNO, signed the April 3rd discipline form. See Edmondson Depo. at 2, 4, 57. The “description” section notes more than just the isolated March 30th violation, including “(1–10–06) (2–1–06) (3–1–06) (3/20 –3/21) (3/30).” Dismissal Request Exhs. at 14. Plaintiff was advised that, to avoid a written warning for attendance, she must not miss work through end of the year. See id. at 15. Plaintiff “disagreed” with this assessment, noting in writing that each of the listed occurrences were “accompanied by written excuse by a doctor re: my health,” with the exception of March 30th, when she “unexpected[ly]” had to “euthanize my cat.” Id. at 14. She refused to sign the counseling form. See id. at 15.

On May 2, 2006, Plaintiff executed a “Request For Family And Medical Leave Of Absence” form and requested leave from “June 22” to “pending.” FMLA & Evaluations Exhs. at 1. The record is unclear whether HRD Goldschmidt transmitted the request, and whether the request was approved for this unspecified and open-ended period. Plaintiff did undergo a second aneurysm surgery on May 12, 2006 according to her doctor (in June 2006 according to Plaintiff) where, apparently, the stent was either replaced or checked. See Laws Depo. at 31, 35; Laws Aff. ¶ 13.

The record does not indicate how long Plaintiff was out of work after the second surgery. She evidently returned by mid-August because on August 13, 2006 she received a written warning for missing work on that day, and was advised that another occurrence before the end of the year would ...