Amity Koch v. Thames Healthcare Group

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 13, 2021
• Docket: 20-5367
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0241n.06cca

No. 20-5367

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) May 13, 2021 AMITY KOCH, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN THAMES HEALTHCARE GROUP, LLC, ) DISTRICT OF KENTUCKY ) Defendant-Appellee. )

BEFORE: BATCHELDER, CLAY, and BUSH, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Amity Koch was a

nursing-home nurse employed by the Defendant-Appellee Thames Healthcare Group, LLC. Koch,

who has Attention Deficit Hyperactivity Disorder (ADHD) and Major Depressive Disorder

(MDD), was terminated by Thames after she violated its no-call/no-show attendance policy. Koch

sued Thames for disability discrimination and retaliation under the Kentucky Civil Rights Act

(KCRA) and interference and retaliation under the Family and Medical Leave Act (FMLA). The

district court granted Thames summary judgment. We AFFIRM.

I.

Thames employed Koch at its Greenwood Nursing and Rehabilitation Center in Bowling

Green, Kentucky. Greenwood has a robust attendance policy under which it accommodates

chronically absent or tardy employees by providing counseling and warnings before termination.

But, if an employee is to miss a scheduled shift for any reason, she must notify her supervisor or No. 20-5367, Koch v. Thames Healthcare Group, LLC

the nurse-in-charge at least two hours before her shift starts. If she fails to do so, she is deemed a

no-call/no-show. And after two no-call/no-shows, the employee is automatically terminated.

Greenwood first hired Koch on April 5, 2016. From the start, Koch was chronically absent

and was eventually placed on a 30-day probation period. Her absenteeism persisted through

January 2017, at which point she took a voluntary three-month leave of absence. In April 2017,

Thames rehired Koch under another 30-day probationary period. Within her first month back,

Thames suspended Koch for two days for leaving work without permission. Koch’s poor

attendance habits continued, causing Greenwood’s Assistant Director of Nursing, Nicole Jessie,

to counsel and warn Koch about her absences and advise Koch about Greenwood’s attendance

policy.

Then came the week of August 14, 2017. On that Monday, Koch was scheduled to begin

work at 7:00 a.m. but did not show. Koch text messaged Greenwood’s Director of Nursing,

Amanda Steffey, at 7:24 a.m., stating that she had a doctor’s appointment for her wrist injury at

8:30 a.m. and that she would arrive to work “[r]ight after it’s done,” but she never did.

Koch missed her Tuesday, August 15 shift too. Her phone records show that she placed a

one-minute call to Steffey at 6:52 a.m., eight minutes before her shift started. Steffey denies

hearing from Koch but conceded that her poor cellular service might have prevented Koch’s call

from going through. Koch claims that she told Steffey that she “wouldn’t be coming in the rest of

th[e] week[,]” but did not explain further. That day, Steffey filled out a disciplinary notice, noting

that Koch should be fired for two no-call/no-shows. To give Koch a chance to explain her absence,

Steffey did not send the form to human resources that day. Koch does not claim that she contacted

Steffey later that day to explain her absence.

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Koch also missed her shift on Wednesday, August 16. She claims that she sent Steffey a

text message at 6:27 p.m., 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.”1. But Steffey denied receiving

the text.

On Thursday, August 17, Koch again missed work. This time, Steffey submitted a written

disciplinary notice to the human resources department for processing. The notice recounted

Koch’s absences on August 14–16 and again suggested Koch’s termination.

On Friday, August 18, Koch left a letter on Steffey’s desk. The letter was from Koch’s

medical care provider, Nurse Practitioner Cindy 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.

Koch claims that she attempted to contact Steffey and Jessie about returning to work but Steffey

and Jessie denied receiving those messages. Greenwood officially terminated Koch on August 20.

Koch subsequently sued Thames, alleging interference and retaliation under the FMLA and

disability-discrimination and retaliation under the KCRA.2 After discovery, both Koch and

Thames filed motions in limine, and Thames moved the court for summary judgment on Koch’s

FMLA and KCRA claims. The district court granted Thames’ summary judgment motion and

denied both parties’ motions in limine as moot. Koch v. Thames Healthcare Grp., No. 1:18-CV-

00039, 2020 U.S. Dist. LEXIS 56372 (W.D. Ky. Mar. 31, 2020). The district court concluded that

1 Koch asserts that she sent that text message on August 15, but her phone records show a text message sent to Steffey on August 16, not August 15. 2 Koch also filed a claim with the Equal Employment Opportunity Commission. The EEOC dismissed Koch’s claim but reserved her right to sue.

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neither the FMLA nor the KCRA entitled Koch to relief. It held that Koch was not entitled to

FMLA leave and even if she was, she did not provide proper notice. Id. at *34–36. It also held

that Koch was not disabled as defined by the KCRA because her medication mitigated the effects

of her ADHD and MDD. Id. at *25. The district court also dismissed Koch’s retaliation claims.

Koch timely appeals.

II.

We review a district court’s grant of summary judgment de novo. Bryson v. Regis Corp.,

498 F.3d 561, 569 (6th Cir. 2007). “Summary judgment is proper if the evidence, taken in the

light most favorable to the nonmoving party, shows that there are no genuine issues of material

fact and that the moving party is entitled to a judgment as a matter of law.” Id. “Our task is to

determine whether the evidence presents a sufficient disagreement to require submission to a jury

or whether it is so one-sided that one party must prevail as a matter of law.” Id. (internal quotation

marks omitted).

A. FMLA Interference

Under the FMLA, it is “unlawful for employers to interfere with or deny an employee’s

exercise of her FMLA rights.” Bryson, 498 F.3d at 570 (citing 29 U.S.C. §§ 2614, 2615). To state

a claim of FMLA interference, the employee must show that: (1) she was an eligible employee;

(2) her employer was a covered employer; (3) she was entitled to leave under the FMLA; (4) she

gave her employer notice of her intention to take leave; and (5) her employer denied or interfered

with the FMLA benefits to which she was entitled. See Wallace v. FedEx Corp., 764 F.3d 571,

585 (6th Cir. 2014).

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Here, the parties dispute the entitlement and notice elements. Assuming that Koch was

entitled to FMLA leave—though we have doubts that she was—Koch did not properly notify

Thames that she intended to take FMLA leave during the week of August 14, 2017.

“The critical test for substantively-sufficient notice is whether the information that the

employee conveyed to the employer was reasonably adequate to apprise the employer of the

employee’s request to take leave for a serious health condition that rendered him unable to perform

his job.” Brenneman v. MedCentral Health Sys., 366 F.3d 412, 421 (6th Cir. 2004). “While an

employee need not expressly assert rights under the FMLA or even mention the FMLA, the

employee must give the employer enough information for the employer to reasonably conclude

that an event described [by the] FMLA [] has occurred.” Walton v. Ford Motor Co., 424 F.3d 481,

486 (6th Cir. 2005) (citations and quotations omitted).

There are different standards for foreseeable and unforeseeable leave. Koch’s FMLA-

interference claim fails under both.

i. Foreseeable Leave

Under the FMLA, a plaintiff must give 30 days’ notice for foreseeable leave, but if “30

days[’] notice is not practicable, such as because of a lack of knowledge of approximately when

leave will be required to begin, a change in circumstances, or a medical emergency, notice must

be given as soon as practicable.” 29 C.F.R. § 825.302(a) (2013). “As soon as practicable means

as soon as both possible and practical, taking into account all of the facts and circumstances in the

individual case.” 29 C.F.R. § 825.302(b).

Koch’s absence was undoubtedly foreseeable. Koch testified that she ran out of medication

and was incapacitated on Sunday, August 13. Because nothing in the record indicates that Koch

knew of her impending absence thirty days in advance, we assess whether it was practical for Koch

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to notify Thames of absences on Monday, August 14. We find that it was. Koch could have

notified Steffey on Monday morning when she texted Steffey about her 8:30 a.m. wrist-injury

appointment.

Koch argues that she provided sufficient notice during her one-minute phone call with

Steffey on the morning of August 15 and again on the evening of August 16 when she texted

Steffey that she was “afraid to leave [her] house [that] week” and that she “ran out of samples, and

it hit [her] hard Sunday.” Even assuming, as we must, that Steffey received that phone call and

text message, those contacts were insufficient to notify Thames of Koch’s FMLA leave and too

late to avoid automatic termination under the attendance policy.

Koch’s August 15 phone call merely conveyed that she would not be coming for the rest

of the week without further explanation. The August 16 text message merely stated that Koch was

out of medication, not that it affected her ADHD or MDD, or that she was requesting leave for the

next day. Why was she afraid to leave her house, and what hit her hard? Without more, her text

message could not reasonably put Thames on notice that Koch was suffering from a serious health

condition or that she was requesting FMLA leave because of it. See Beaver v. RGIS Inventory

Specialists, Inc., 144 F. App’x 452, 456–57 (6th Cir. 2005) (finding that the plaintiff’s general

description of her ailment and absence did not provide sufficient FMLA-leave notice).

More importantly, both Koch’s phone call and text message were tardy. Koch’s August

15 phone call did not come until eight minutes before her shift started, long after the attendance

policy’s two-hour-notice deadline. The same goes for the letter from Koch’s medical care

provider, which did not come until August 17. Before that time, Koch had two no-call/no-shows

and was subject to automatic termination under Thames’ attendance policy.

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ii. Unforeseeable Leave

When the need for leave is “not foreseeable, an employee must provide notice to the

employer as soon as practicable under the facts and circumstances of the particular case.”

29 C.F.R. § 825.303(a). Notice “shall provide sufficient information for an employer to reasonably

determine whether the FMLA may apply to the leave request.” 29 C.F.R. § 825.303(b).

The unforeseeable-leave standard permits a plaintiff to cure a notice default by showing

that she could not give notice before the absence or leave. But the record refutes Koch’s claim

that her major depressive episode and fear to leave her house justified her failure to abide by the

FMLA’s notice requirement. Over the course of that week, Koch sent and received 702 text

messages and placed and received over ten phone calls to a variety of third parties. See Acker v.

Gen. Motors, LLC, 853 F.3d 784, 789–90 (5th Cir. 2017) (rejecting claim of unusual circumstances

when the employee could not explain why “‘unusual circumstances’ left him capable of calling

one line, but not the other”).

The district court properly concluded that Thames did not interfere with Koch’s FMLA

rights.

B. KCRA Discrimination Claim

“The language of the KCRA mirrors that of the ADA; consequently, claims brought under

the KCRA are interpreted consistently with the standards developed under the ADA.” Bryson,

498 F.3d at 574 (citation omitted); see Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky.

2003) (“The Kentucky Civil Rights Act was modeled after federal law, and our courts have

interpreted the Kentucky Act consistently therewith.”). Because Kentucky passed the KCRA

before the ADA Amendments Act (ADAAA), this court continues to apply pre-ADAAA

jurisprudence to KCRA analysis. See Krueger v. Home Depot USA, Inc., 674 F. App’x 490, 494

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(6th Cir. 2017) (“[T]he Kentucky legislature adopted the language in the KCRA in 1992 and

intended it to reflect the language of the ADA at that time, not the subsequent amendments.”);

Breen v. Infiltrator Sys., 417 F. App’x 483, 486 (6th Cir. 2011) (“[T]h[e] amendment has yet to be

incorporated into the Kentucky statute, see K.R.S. § 344.010(4) (1992), so the pre-2008 ADA

standards apply to [Plaintiff]'s claim.”).

“Under [Kentucky Revised Statutes] § 344.040(1), it is unlawful for an employer to

discharge any individual . . . because the person is a qualified person with a disability.” Hallahan

v. Courier-Journal, 138 S.W.3d 699, 706 (Ky. Ct. App. 2004) (internal quotation marks omitted).

When, like here, a plaintiff bases his or her disability-discrimination claim on circumstantial

evidence, Kentucky courts require that the plaintiff show that:

(1) he is disabled; (2) he is “otherwise qualified” for the position with or without reasonable accommodation; (3) he suffered an adverse employment decision; (4) the employer knew or had reason to know of the plaintiff’s disability; and (5) the position remained open while the employer sought other applicants or the disabled plaintiff was replaced. The employer must then offer a legitimate explanation for its action. If the employer satisfies this burden of production, the plaintiff must introduce evidence showing that the proffered explanation is pretextual.

Id. at 706 n.5.

Koch’s claim falters on the disability prong. Under the KCRA, the term “disability” is

defined to include: (a) a physical or mental impairment that substantially limits one or more of the

major life activities of the individual; (b) a record of such impairment; or (c) being regarded as

having such an impairment. See K.R.S. 344.010(4). Koch does not have a disability under any

scenario.

i. Substantial Limitation.

Under pre-ADAAA law, Kentucky courts consider three factors in determining whether an

individual is substantially limited: “[1] the nature and severity of the impairment; [2] the duration

or expected duration of the impairment; and [3] the permanent or long-term impact, or the expected -8- No. 20-5367, Koch v. Thames Healthcare Group, LLC

permanent or long-term impact of or resulting from the impairment.” Toyota Motor Mfg., Ky., Inc.

v. Williams, 534 U.S. 184, 196 (2002), superseded by statute Pub. L. No. 110-325, 122 Stat. 3553

(2009). “Merely having an impairment does not make one disabled for purposes of the ADA [and

KCRA].” Id. at 195. “Under Kentucky law temporary impairments do not qualify as disabilities”

either. Larison v. Home of the Innocents, 551 S.W.3d 36, 43 (Ky. Ct. App. 2018). Therefore, “a

person whose . . . mental impairment is corrected by mitigating measures still has an impairment,

but if the impairment is corrected it does not substantially limi[t] a major life activity.” Sutton v.

United Air Lines, Inc., 527 U.S. 471, 483 (1999), superseded by statute Pub. L. No. 110-325, 122

Stat. 3553 (2009) (alteration in original) (internal quotation marks omitted).

Koch has provided sufficient evidence that she suffers a mental impairment, but her

impairment does not substantially limit her ability to work. Her period of incapacity lasts only as

long as she lacks medication. Koch was fully capable of working when she was medicated. At

worst, Koch’s substantial limitation was temporary, which, in this instance, lasted only four days—

and only because she was without medicine. See Mahon v. Crowell, 295 F.3d 585, 590–91 (6th

Cir. 2002) (An “impairment that only moderately or intermittently prevents an individual from

performing major life activities is not a substantial limitation” under the ADA). Koch’s ADHD

and MDD does not substantially limit her work activities.

ii. Record of Disability.

“A record of an impairment means an individual has ‘a history of, or has been misclassified

as having, a mental or physical impairment that substantially limits one or more major life

activities.’” MX Grp., Inc. v. City of Covington, 293 F.3d 326, 339 (6th Cir. 2002) (citation

omitted). Koch’s record-of-disability challenge fails because she does not cite to any history or

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classification demonstrating that her impairment substantially limits one or more major life

activities. Id.

iii. Regarded as Disabled.

Although the record reveals that Steffey and other Thames employees knew that Koch had

ADHD—through Koch’s jokes or hearsay statements—it does not reflect that Koch or Thames’s

staff classified or regarded Koch as disabled. The record refutes any claim that (1) Thames thought

that Koch’s ADHD or MDD prevented her from performing a broad class of jobs and (2) Thames

modified Koch’s duties to accommodate a perceived disability. See Schave, 127 S.W.3d at 594

(“To 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.” (alteration in original) (internal quotation marks omitted)).

There is no genuine issue of fact as to whether Koch had a disability as defined by K.R.S.

§ 344.010(4).

C. FMLA and KCRA Retaliation Claims

Koch’s corresponding retaliation claims also fail. To survive summary judgment on

retaliation under the FMLA and KCRA, a plaintiff must demonstrate that: (1) she engaged in a

protected activity, (2) her employer knew of that activity, (3) the employer thereafter took an

adverse employment action, and (4) a causal connection exists between the protected activity and

the adverse action. See Seegar v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th Cir. 2012)

(FMLA); Charalambakis v. Asbury Univ., 488 S.W.3d 568, 583 (Ky. 2016) (KCRA).

As discussed above, Koch’s FMLA retaliation claim fails because when Thames

terminated Koch, it had neither notice nor any reason to believe that Koch was exercising her

FMLA rights. See Land v. S. States Coop., Inc., 740 F. App’x 845, 850 (6th Cir. 2018) (affirming

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summary judgment for the defendant because the defendant had already started termination

proceeding before receiving the plaintiff’s FMLA letter).

Koch’s KCRA retaliation claim fails because she merely rehashes her FMLA argument,

which the KCRA does not protect. The KCRA requires that the claimed discrimination be

“because the person is a qualified individual with a disability,” not because the person is

“incapacitated” as defined by the FMLA. Compare K.R.S. § 344.040(1)(a), with 29 C.F.R.

§ 825.115(a); see Stanley v. Haier US Appliance Sols., Inc., No. 3:19-CV-00640, 2020 U.S. Dist.

LEXIS 24448, at *4 (W.D. Ky. Feb. 11, 2020) (“Taking FMLA leave is not a protected activity

for the purposes of the KCRA anti-retaliation provision.”).

III.

For the foregoing reasons, we AFFIRM the judgment of the district court.

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