Payne v. Aggregate Processing, Inc.
| Decision Date | 05 May 2023 |
| Docket Number | 2022-CA-0267-MR |
| Parties | GARY PAYNE APPELLANT v. AGGREGATE PROCESSING, INC. APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
BRIEFS FOR APPELLANT: John S. Friend Robert W. "Joe" Bishop Christopher K. Stewart Lauren E. Freeman Louisville Kentucky
BRIEF FOR APPELLEE: Mary E. Eade Louisville, Kentucky
BEFORE: JONES, KAREM, AND LAMBERT, JUDGES.
Gary Payne appeals from the Bullitt Circuit Court's decision to grant summary judgment to Aggregate Processing, Inc. (API) on his age and disability discrimination claims. We affirm.
The parties do not entirely agree about each factual detail. For example, their briefs list different dates for when Payne was fired. However, disputes about "ancillary facts" will not preclude summary judgment if, as here, "there exists no genuine issue with respect to the facts material to the legal principles supporting the summary judgment which was granted." City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 391 (Ky. 2001). In other words, "[t]he key is not whether there is an absence of fact issues but whether there are no genuine or material issues of fact." Fischer v. Heckerman, 772 S.W.2d 642, 645 (Ky. App. 1989).
API's president and founder, John Hutchins, hired Payne to be API's general manager in 2018 when Payne was in his early fifties. Hutchins fired Payne in 2019. According to Payne, he was fired because of his age and because Hutchins regarded Payne as being disabled.
Payne asserts that Hutchins believed Payne had Alzheimer's disease, and made several comments related to Alzheimer's. In his affidavit Payne asserts that Hutchins asked Payne if he would be tested for Alzheimer's disease in May 2019 in response to Payne telling Hutchins about an upcoming medical appointment. Payne further averred that Hutchins' remark was startling because he (Payne) had never expressed any Alzheimer's-based concerns to Hutchins. When Payne asked Hutchins why he made the comment, Hutchins responded that he knew Payne's mother had been diagnosed with Alzheimer's in her fifties. Payne's affidavit also asserts that Hutchins later asked Payne if he had visited a neurologist to check whether he had Alzheimer's and added that he (Hutchins) was familiar with the signs of Alzheimer's. Payne's affidavit states that Hutchins also said API "was not big enough to have [a] General Manager."
According to API, Payne was fired for nondiscriminatory reasons, such as poor performance. API's version of events mainly relies on its answers to interrogatories.[1] API states Hutchins terminated Payne in May 2019. Soon after, Payne texted Hutchins to say that he (Payne) had shingles. Hutchins eventually told Payne via text to return on June 4, when they would [2]
Hutchins and Payne met on June 10. API does not offer many details about that meeting beyond asserting Hutchins offered Payne a sales job at API. Payne's affidavit discusses that meeting in more detail. Payne avers that Hutchins asked whether Payne had "taken care of my medical issues" and that he (Payne) responded that "there was nothing about my health that should concern [Hutchins]." Payne asserts that Hutchins then asked Payne if he "had gone to see a neurologist to check whether [Payne] had Alzheimer's disease" and Hutchins "was familiar with the signs of Alzheimer's." But Payne's affidavit does not directly address whether Hutchins offered Payne another job at API.
Payne filed this action in December 2019, raising an age discrimination claim and a disability discrimination claim based on Payne's belief that API regarded him as having a disability. In January 2021, API filed a motion for summary judgment, which the trial court granted several months later. Payne filed this appeal after the trial court denied his motion to alter, amend, or vacate.[3]
Before we address Payne's arguments, we must resolve a motion for leave to file an amicus curiae brief submitted by the Kentucky Commission on Human Rights ("the Commission"). Allowing an amicus curiae to participate "is a matter that lies within the discretion of the court." Thompson v. Fayette Cnty., 302 S.W.2d 550, 552 (Ky. 1957). We tend to take a lenient approach to allowing the filing of amicus briefs since those briefs often provide helpful insights. However, the Commission's tendered brief primarily focuses on issues which the parties did not raise in their briefs. An amicus brief generally may not raise new issues. See, e.g., Robertson v. Hert's Adm'rs, 312 Ky. 405, 227 S.W.2d 899, 904 (1950) ( ). Therefore, we have denied the Commission's motion by separate order issued this same date.
Turning to the merits, we must analyze "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." Lewis v. B &R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (citations omitted). When resolving a motion for summary judgment, a court "must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor." Id. 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." Id.
We begin with Payne's claim that he should have had additional time to conduct discovery before the trial court granted summary judgment to API. Summary judgment "is proper only after the party opposing the motion has been given ample opportunity to complete discovery ...." Suter v. Mazyck, 226 S.W.3d 837, 841 (Ky. App. 2007).
However, "[i]t is not necessary to show that the respondent has actually completed discovery, but only that respondent has had an opportunity to do so." Hartford Ins. Group v. Citizens Fidelity Bank &Tr. Co., 579 S.W.2d 628, 630 (Ky. App. 1979). Whether a party had an ample opportunity to complete discovery before the issuance of a summary judgment ruling is an issue we review under the deferential abuse of discretion standard. Bowlin Group, LLC v. Rebennack, 626 S.W.3d 177, 187 (Ky. App. 2020).
We discern no abuse of discretion here. API did not move for summary judgment until the case had been pending for roughly fourteen months. And the case had been pending for roughly twenty months by the time the trial court granted summary judgment to API.
We realize that the COVID-19 pandemic made litigation practice much more challenging, especially in the pandemic's early stages. However, Payne had the opportunity to conduct discovery, especially via electronic means, for over a year. For example, Payne laments not having taken Hutchins' deposition but has not shown why he was unable to do so (via video, if necessary). Though another court may have allowed Payne more time to conduct discovery, the trial court's conclusion that Payne had been given an ample opportunity to complete discovery is not so unreasonable as to constitute an abuse of discretion.
We now turn to the merits, beginning with Payne's "regarded as" disabled claim. Chapter 344 of the Kentucky Revised Statutes (KRS), known as the Kentucky Civil Rights Act (KCRA), "bars an employer from discharging an employee because of disability." Barnett v. Central Kentucky Hauling, LLC, 617 S.W.3d 339, 340 (Ky. 2021). The KCRA "is to be interpreted to provide a statelaw vehicle for executing protections similar to those afforded under the federal Americans with Disabilities Act of 1990 (ADA) ...." Id. at 343.
Payne's complaint does not allege that he actually has a qualifying disability; instead, he alleges API (i.e., Hutchins) believed that he did.[4] Such a claim may be brought under the KCRA because its definition of disability includes "being regarded as" having "[a] physical or mental impairment that substantially limits one (1) or more of the major life activities ...." KRS 344.010(4). "As with actual impairments, the perceived impairment under the 'regarded as' prong must be one that, if real, would substantially limit a major life activity of an individual." Hallahan v. The Courier-Journal, 138 S.W.3d 699, 707 (Ky. App. 2004). Working is deemed to be a major life activity. Id. at 708.
However an employer's belief that an employee Stover v. Amazon.com, LLC, 442 F.Supp.3d 971, 986 (E.D. Ky. 2020) (internal quotation marks and citations omitted); Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 594 (Ky. 2003) (internal quotation marks, citations, and footnotes omitted) ( a decision of the United States Supreme Court to hold that "[t]o succeed upon a regarded as disabled claim, plaintiff must demonstrate that an employer thought he was disabled, [. . . and] that the employer thought that his disability would prevent him from performing a broad class of jobs.").[5] Payne has presented some evidence that API believed...
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