Jacob Ashby v. Ed Brady, Henderson County Sheriff

• Court: Court of Appeals of Kentucky
• Decided: December 16, 2021
• Docket: 2020 CA 001578
• Status: Unknown

Opinion

RENDERED: DECEMBER 17, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-1578-MR

JACOB ASHBY APPELLANT

APPEAL FROM HENDERSON CIRCUIT COURT v. HONORABLE KAREN LYNN WILSON, JUDGE ACTION NO. 19-CI-00493

ED BRADY, HENDERSON COUNTY SHERIFF APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, MAZE, AND McNEILL, JUDGES.

MAZE, JUDGE: Jacob Ashby appeals from a summary judgment entered by the

Henderson Circuit Court on his disability discrimination and retaliation claims

against Ed Brady, Henderson County Sheriff (Sheriff Brady). He argues that there

were genuine issues of material fact which should have precluded summary

judgment on these claims. However, we agree with the trial court that Ashby failed to establish a prima facie case for disability discrimination or retaliation.

Hence, we affirm.

In January 2017, the Henderson County Sheriff’s Office (HCSO)

hired Ashby as a deputy sheriff. When he was hired, Ashby advised the HCSO of

his medical history, which included a motorcycle accident on May 8, 2011. As a

result of the accident, Ashby suffered skull fractures and a subdural hematoma.

Later in 2011 and in 2012, Ashby suffered seizures, which were attributed to sleep

deprivation and heat exhaustion.

Ashby graduated from the police academy in August 2017 and began

his work as a deputy sheriff. Shortly after completing his training, Ashby

experienced a brief loss of consciousness while off-duty. He did not report this

episode to HCSO.

On October 11, 2018, Ashby crashed his police cruiser while on duty.

He filed an incident report with Sheriff Brady, explaining the cause of the accident

as falling asleep at the wheel.1 Footage from his cruiser dash camera and body

camera showed that he lost consciousness for over five minutes.

1 Ashby initially told the responding HCSO deputies that he had lost control of his cruiser after swerving to avoid a deer. At the emergency room, he told physicians he had fallen asleep due to sleep deprivation.

-2- Sheriff Brady restricted Ashby’s duties until he could be seen by a

doctor, preferably a neurologist. On October 25, 2018, Ashby went to see

neurosurgeon Dr. Blaine Lisner. Dr. Lisner performed a neurological scan, the

results of which were normal. Based on these results and Ashby’s self-reported

history, Dr. Lisner concluded that Ashby had not suffered a seizure. Rather, Dr.

Lisner diagnosed Ashby with a concussion and released him to work without

restriction.

At the HSCO’s request, Ashby want to see another neurologist, Dr.

Satish Shah, on November 8, 2018. Based on Ashby’s medical history, Dr. Shah

also suspected that Ashby suffered a sleep deprivation-induced seizure. Dr. Shah

ordered an EEG, the results of which were abnormal. He prescribed Keppra (an

anti-seizure medication) and placed Ashby on work restrictions. Those restrictions

included no driving for ninety days after the incident, no climbing unprotected

heights, no operation of heavy machinery, and “common sense” precautions.

Ashby began driving after the ninety-day period, but he remained

subject to the other restrictions. In March of 2019, Ashby asked for a fixed day

shift. HCSO declined the requested because it assigned shifts based on seniority.

Ashby continued to work his assigned schedule.

On June 25, 2019, Ashby attended firearm training beginning at 8:00

a.m. This was only two hours after his eight-hour night shift had ended. Ashby

-3- had the option of attending a session at noon, but he chose to go to the morning

session because it would allow him to catch up on sleep that afternoon. During the

training session, Ashby fell and experienced a seizure that lasted several minutes.

He admitted that he missed his morning dose of Keppra that day. The emergency

room physician cleared Ashby to return to work the next day.

On June 27, 2019, Ashby went to see Dr. Shah. Dr. Shah concluded

that it was “very likely Ashby had suffered a sleep deprivation induced seizure.”

He increased Ashby’s dose of Keppra. Dr. Shah also recommended that Ashby get

adequate sleep, and work only a fixed daytime schedule.

Ashby provided this recommendation to the HCSO and again

requested a fixed day shift. Sheriff Brady advised Ashby that he could not

accommodate the request. Instead, Sheriff Brady gave Ashby written notice that

he was being discharged because Ashby’s repeated loss of consciousness

prevented him from performing the essential and required duties of a deputy

sheriff. The notice also stated that Ashby would be re-hired if he offered proof that

his medical condition was “in complete remission.”

On October 2, 2019, Ashby again went to Dr. Shah. Ashby reported

that he had not had any seizure-like activity since the incident on the firing range in

June. Dr. Shah concluded that Ashby could do sedentary work but noted that it

was difficult to predict when he could have another episode. On November 8,

-4- 2019, Dr. Shah wrote a letter stating that Ashby was able to return to work, subject

to the previous restrictions except driving or operating heavy machinery. Ashby

has remained under these restrictions since that time.

Ashby filed his complaint against Sheriff Brady in September 2019.

He alleged that Sheriff Brady’s actions constituted disability discrimination in

violation of KRS2 344.040, and retaliation for having requested an accommodation

in violation of KRS 344.280.3 Following a period of discovery, Sheriff Brady

moved for summary judgment, arguing that Ashby failed to establish a prima facie

case of disability discrimination or retaliation.

After considering the record and arguments of counsel, the trial court

granted the motion. The court found that Ashby failed to show he is otherwise

qualified to perform the essential functions of a deputy sheriff, either with or

without accommodation. Given his repeated instances of losing consciousness, the

court found no evidence that an accommodation would allow Ashby to perform his

duties without any threat of safety to himself or others. In the alternative, the court

found no evidence that Sheriff Brady’s proffered reasons for terminating Ashby

and for declining his request for accommodation were false or pretextual. And

2 Kentucky Revised Statutes. 3 Ashby’s complaint also alleged retaliation for having filed a workers’ compensation claim, in violation of KRS 342.197. But following discovery, he agreed to dismiss this claim.

-5- finally, the trial court found no causal connection between Ashby’s request for an

accommodation and his termination. Therefore, the trial court dismissed both

claims. Subsequently, the trial court denied Ashby’s motion to alter, amend, or

vacate the summary judgment order. Ashby now appeals.

The sole question presented on appeal is whether Sheriff Brady was

entitled to summary judgment as a matter of law. “[T]he proper function of

summary judgment is to terminate litigation when, as a matter of law, it appears

that it would be impossible for the respondent to produce evidence at the trial

warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Service Center,

Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, stipulations, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

law.” CR4 56.03. The record must be viewed in a light most favorable to the party

opposing the motion for summary judgment and all doubts are to be resolved in his

favor. Steelvest, 807 S.W.2d at 480. The trial court must examine the evidence,

not to decide any issue of fact, but to discover if a real issue exists. Id. Since a

summary judgment involves no fact-finding, this Court’s review is de novo, in the

4 Kentucky Rules of Civil Procedure.

-6- sense that we owe no deference to the conclusions of the trial court. Scifres v.

Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

The scope of our review is further defined by the elements necessary

to establish a prima facie case under the Kentucky Civil Rights Act (KCRA). KRS

344.010 et. seq. In pertinent part, KRS 344.040(1) provides that it is unlawful for

an employer to discharge or otherwise discriminate against an individual with

respect to compensation, terms, conditions, or privileges of employment because

the person is a “qualified individual with a disability.” The plaintiff bears the

initial burden of establishing a prima facie case of disability discrimination against

the defendant. Hallahan v. The Courier-Journal, 138 S.W.3d 699, 706-07 (Ky.

App. 2004). To establish a prima facie case of discrimination based on a

disability, the plaintiff must show: (1) that he had a disability as that term is used

under the statute; (2) that he was “otherwise qualified” to perform the requirements

of the job, with or without reasonable accommodation; and (3) that he suffered an

adverse employment decision because of the disability. Id.

KRS 344.010(4) defines “disability” to mean:

(a) A physical or mental impairment that substantially limits one (1) or more of the major life activities of the individual;

(b) A record of such an impairment; or

(c) Being regarded as having such an impairment.

-7- See also 42 U.S.C.5 § 12102(2). Whether the plaintiff has an impairment and

whether the conduct affected by the impairment is a major life activity under the

statute are legal questions. Hallahan, 138 S.W.3d at 707. The ultimate

determination of whether the impairment substantially limits the major life activity

generally is a factual issue for the jury, but it may be resolved upon summary

judgment under the appropriate circumstances. Id.

As an initial matter, Ashby disputes whether his condition is actually a

seizure disorder. Ashby points to Dr. Lisner’s initial conclusion that he suffered a

concussion from the vehicle accident but had no permanent neurological trauma.

Ashby also maintains that his episodes were caused by lack of sleep and possibly a

side effect of the Keppra medication. Ashby also notes Dr. Shah’s initial

conclusion that he did not suffer a seizure during the vehicle accident.

But in disputing the cause of his loss of consciousness, Ashby

undermines the first element of his prima facie case. Merely having an impairment

does not demonstrate that the impairment limits a major life activity. See Toyota

Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195, 122 S. Ct. 681, 690,

151 L. Ed. 2d 615 (2002), superseded by legislative action, U.S. Pub. L. 110-325

(2009). If Ashby’s condition is not a “physical or mental impairment that

5 United States Code. The KCRA’s disability provisions incorporate the definitions under the Federal “Americans with Disabilities Act” (ADA), 42 U.S.C. §§ 12101 et seq.

-8- substantially limits one (1) or more of [his] major life activities[,]” then he does not

have an actionable disability within the meaning of the KCRA. KRS

344.010(4)(a).

However, the trial court presumed, for summary judgment purposes,

that Ashby’s condition constitutes a disability within the meaning of the KCRA.

While Ashby’s argument somewhat undermines this presumption, neither party has

challenged this conclusion on appeal. Rather, the question on appeal involves the

second element of his prima facie case – whether Ashby was “otherwise qualified”

to perform the requirements of his position as a deputy sheriff, either with or

without reasonable accommodation.

Ashby takes the position that there are genuine issues of material facts

whether he is capable of performing the requirements of his position, particularly if

he is allowed a reasonable accommodation. In contrast, Sheriff Brady argued, and

the trial court agreed, that the risk of an unexpected seizure would make Ashby’s

employment with the HCSO a “direct threat” to his own safety, the safety of his

colleagues, and the safety of the public at large. The trial court further found that,

“even if Ashby had a fixed shift, [HCSO] cannot control all the multiple other

factors which may lead to Ashby’s having another seizure, such as heat,

dehydration, and his remembering to take his medication or get enough sleep.”

-9- In reaching this conclusion, the trial court applied the analysis set out

in Coleman v. Pennsylvania State Police, 561 F. App’x 138 (3d Cir. 2014), a

factually similar case. Coleman, a probationary state trooper, experienced

recurrent seizures caused by a work-related automobile accident. Id. at 140.

Despite treatment and medication, Coleman continued to experience seizures. As a

result, the Pennsylvania State Police (PSP) placed Coleman on limited-duty

assignment until he remained “seizure-free” for at least five years. Id. at 141.

Ultimately, the PSP terminated Coleman due to the lack of limited-duty

assignments for the requisite period. Id.

Coleman brought suit against the state police under the Rehabilitation

Act of 1973, 29 U.S.C. § 794(a); the ADA, 42 U.S.C. § 12133; and Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. The federal district court granted

the PSP’s motion for summary judgment, finding, among other things, that there

were no genuine issues of material fact whether: (1) Coleman was otherwise

qualified to perform the essential functions of a PSP full status trooper; and (2)

whether the PSP could have made reasonable accommodations that would have

allowed him to perform those essential functions. Coleman, 561 F. App’x at 142.

As in the current case, Coleman argued that there were genuine issues

of material fact whether he could perform the essential functions of his job with

reasonable accommodations. The Third Circuit disagreed, noting that,

-10- an employer may assert a defense to a charge of discrimination by showing that a contested qualification standard is “consistent with business necessity” or that it prevents an individual from posing “a direct threat to the health or safety” of others in the workplace. 42 U.S.C. § 12113(b)-(c). In the context of regulations governing law enforcement officers, courts have found that “employers do not violate the ADA by ensuring that officers are . . . fit for duty.” Davis-Durnil v. Vill. of Carpentersville, 128 F.Supp.2d 575, 580 (N.D. Ill. 2001); see also Maull v. Div. of State Police, Dep’t of Pub. Safety, State of Delaware, 141 F.Supp.2d 463, 474 (D. Del. 2001) (“[C]ourts have also recognized a distinction when the employee is a law enforcement officer. The ADA permits employers to consider whether an individual poses a direct threat . . . when considering whether an employee is qualified, and in the case of police officers, ensuring public health and safety is the sine qu[a] non of their job.”); Ethridge v. Alabama, 860 F. Supp. 808, 816 (M.D. Ala. 1994) (finding that shooting in a specified stance is an “essential function” that must be performed by police officers).

Id. at 144 (footnotes omitted).

The Third Circuit concluded that the PSP’s seizure protocol was

consistent with the “essential function” test because it appropriately addressed the

issue of whether the trooper’s employment would pose a “direct threat.” Since the

medical evidence established that Coleman remained at risk of another seizure, the

court found that the PSP explained that this risk was significant enough to

constitute a “direct threat” and that the seizure protocol was a justified response to

that threat. Id. at 145.

-11- Ashby points out that the “direct threat” exemption is codified in the

United States Code and the Code of Federal Regulations, but it does not have any

analogue in Kentucky statutes. However, the KCRA was modeled after federal

law, and our courts have interpreted the Kentucky Act consistently with the

corresponding federal enactments. Howard Baer, Inc. v. Schave, 127 S.W.3d 589,

592 (Ky. 2003). Furthermore, the ADA requires the same prima facie showing as

the KCRA requires in disability discrimination cases.

Ashby further argues that the “direct threat” framework is not

applicable to his case. He points out that, unlike the PSP, the HCSO has not

adopted a seizure protocol governing all employees in his position. Instead,

Sheriff Brady merely made an ad hoc assessment that Ashby’s condition posed a

threat to the performance of his duties. Ashby further notes that neither Dr. Lisner

nor Dr. Shah diagnosed him with a seizure disorder. And both physicians have

cleared him to return to work, subject only to limited restrictions.

Finally, Ashby states that no physician has directly opined that his

work as a sheriff’s deputy would create a significant risk of harm to himself, his

co-workers, or to the public at large. Rather, Sheriff Brady based his decision

upon his own assessment of Ashby’s condition. Consequently, Ashby argues that

the trial court erred in finding that he was unable to safely perform the essential

requirements of his position without posing a risk of harm to himself or others.

-12- The trial court recognized that these factors distinguish Ashby’s

situation from the facts in Coleman. However, the court noted that Sheriff Brady

was not relying solely on his own opinion; he was basing his assessment on the

restrictions imposed by Dr. Shah. In addition, HCSO personnel observed Ashby

suffer an apparent seizure on the firing range, and this was consistent with his loss

of consciousness during the automobile accident. In fact, Dr. Shah diagnosed the

firing-range incident as a seizure, and he had previously prescribed an anti-seizure

medication. In addition, Ashby remains under most of the restrictions imposed by

Dr. Shah.

Even if the “direct threat” framework of Coleman is not applicable to

a disability discrimination claim under the KCRA, we agree with the trial court

that Ashby failed to establish the second element of his prima facie case. Ashby’s

diagnosis and prognosis are not as clear as the trooper in Coleman. Nevertheless,

Ashby remains under significant work restrictions. At the time of his termination,

he could not climb heights unattended, swim unattended, or operate heavy

machinery.

Sheriff Brady testified that these restrictions could prevent Ashby

from performing the essential functions of his position. Dr. Shah also stated that it

would be “difficult to predict” whether Ashby could have another episode, and that

many factors, not just lack of sleep, could trigger another episode. Therefore, we

-13- agree with the trial court that Ashby failed to establish that he was “otherwise

qualified” to perform the job duties of a deputy sheriff, either with or without

reasonable accommodation. And since Ashby failed to establish this element of

his prima facie case, the issues relating to the pretext analysis are moot.

Consequently, the trial court properly granted summary judgment for Sheriff Brady

on this claim.

Ashby also contends that Sheriff Brady retaliated against him for

requesting an accommodation of a fixed day shift. KRS 344.280(1) makes it

unlawful for a person:

To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter.

See also Charalambakis v. Asbury Univ., 488 S.W.3d 568, 580 (Ky. 2016).

A plaintiff does not necessarily need prove an underlying violation of

the KCRA to sustain a retaliation claim under KRS 344.280(1). Asbury Univ. v.

Powell, 486 S.W.3d 246, 252 (Ky. 2016). Rather, all that is required to obtain

retaliation protection under KRS 344.280(1) is that: (1) the employee have “a

reasonable and good faith belief” that the adverse employment practices he

opposed were KCRA violations, id.; and (2) the adverse employment action would

not have occurred but for the protected conduct. Id. at 256.

-14- In the current case, Sheriff Brady did not terminate Ashby when he

requested a fixed day shift in March 2019. In fact, Ashby continued to work his

regular schedule until the July 2019 incident on the firing range. Rather, Sheriff

Brady terminated Ashby following the firing range incident and after determining

the HCSO could not accommodate Dr. Shah’s recommendation of a fixed day

schedule.

Even if this were sufficient to establish a causal connection between

Ashby’s request for an accommodation and the adverse employment action, Ashby

must also show that his request was a “substantial and motivating factor” for the

decision to terminate him. Powell, 486 S.W.3d at 256. As discussed above,

Sheriff Brady presented definitive evidence that the requested accommodation was

not reasonable because it assigned duty shifts based on seniority. Furthermore,

Ashby remained unable to perform the essential functions of his job even with the

proposed accommodation. As a result, the trial court properly granted summary

judgment on the retaliation claim.

Accordingly, we affirm the summary judgment entered by the

Henderson Circuit Court.

ALL CONCUR.

-15- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

John S. Phillips J. Christopher Hopgood Abigail V. Lewis Davis L. Hunter Louisville, Kentucky Henderson, Kentucky

-16-