RENDERED: MARCH 1, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0225-MR
JANICE HAMILTON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANNIE O’CONNELL, JUDGE ACTION NO. 20-CI-006304
LOUISVILLE & JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
GOODWINE, JUDGE: Janice Hamilton (“Hamilton”) appeals from the October
6, 2022 and January 30, 2023 judgments of the Jefferson Circuit Court. After
careful review and consideration of the parties’ oral arguments, we affirm.
BACKGROUND
Hamilton began employment with the Louisville and Jefferson County
Metropolitan Sewer District (“MSD”) in 2011. She worked as a member of a field crew doing maintenance, repairs, and construction. She began as a Utility Trainee
before advancing to the position of Utility Worker I and then to Utility Worker II.
On February 10, 2012, Hamilton injured her ankle on the job and
subsequently filed a workers’ compensation claim. After being temporarily
restricted from working, she returned to her position. She was injured on the job
for a second time on August 1, 2014. She again filed a workers’ compensation
claim and she was again able to return to her position on the field crew.
In 2015, Hamilton applied for a position in the MSD dispatch
department. After failing the requisite typing test once, she passed it and was
transferred on February 6, 2016. She was supervised by Yvonne Austin
(“Austin”). Hamilton admits she struggled with the duties of her new position,
especially because the work required use of computers. She acknowledges she did
not meet the expectations of the position. Her performance reviews showed that
she needed additional attention and training, and her inability to perform her duties
created additional work for other staff. Her evaluations also show she reacted
poorly to feedback and her behavior negatively impacted her peers.
Austin and Hamilton had a contentious working relationship.
Hamilton alleges various acts of harassment, including micromanagement and rude
remarks from Austin. In 2016, a few months after she began working for dispatch,
Hamilton filed a human resources (“HR”) complaint alleging Austin provided her
-2- insufficient training and claimed Austin created a stressful work environment by
criticizing her performance in front of other staff. Hamilton did not claim she was
disabled or that the alleged harassment was based on a disability. HR investigated
the allegations, and they were unsubstantiated.
In February 2018, Austin placed Hamilton on a 90-day performance
improvement plan (“PIP”). The PIP detailed the skills and duties in which
Hamilton needed to improve to meet the expectations for her position. Hamilton
failed to complete the PIP. Her evaluations continued to show she had not
improved and was rude to other staff. According to an evaluation completed after
the PIP, she did not “possess the capabilities to function in her current position.”
Record (“R.”) at 308.
On June 6, 2018, Austin instructed Hamilton to take her scheduled
lunch break. Hamilton repeatedly refused to do so. According to witnesses and
Hamilton’s admission, in response to Austin’s instruction, she yelled, “I’m sick of
you.” Id. at 319. The next day, Angela Basil (“Basil”), an MSD Employee
Relations Administrator, met with Hamilton and gave her a one-day suspension
without pay because her behavior violated MSD’s rules of conduct. Hamilton
alleged Austin’s instruction for her to take her lunch break was harassment. HR
determined Austin’s instruction was reasonable and Hamilton should have
-3- communicated with her supervisor in a respectful manner. Austin was not
disciplined for the incident.
In September 2018, Hamilton informed HR that she would need to
move around during her shifts because she was at risk of developing cramps or
blood clots. Hamilton is diabetic though she did not mention her diagnosis on her
request form. On that form, her medical provider stated Hamilton experienced
neuropathy which can be aggravated by “prolonged periods of sitting.” Id. at 327.
Her provider recommended she be allowed to walk around for five minutes every
one to two hours. Id. at 328. Hamilton was permitted to take additional breaks as
needed.
In October 2018, Hamilton filed a second HR complaint against
Austin. She alleged Austin followed her to the restroom and harassed her about
taking too long. She admits she was making a personal phone call from the
restroom. She again makes no mention of any alleged disability in her complaint.
HR investigated the incident and found it unsubstantiated.
In January 2019, Hamilton acknowledged she “dropped the ball” by
failing to properly follow up on a request that led to significant sewage backup in a
customer’s yard. Id. at 333. She met with HR and was given a five-day
suspension without pay for the error. A week later, she applied for and received a
leave of absence under the Family and Medical Leave Act (“FMLA”) for an
-4- “unspecified anxiety disorder.” Id. at 341. She sought treatment at The Brook.
Her provider recommended an “intensive outpatient treatment program.” Id. In a
letter, her provider recommended she transfer back to a job in the field. Hamilton
was discharged from The Brook and cleared to return to work in June 2019.
Neither Austin nor Basil were informed of the reason for Hamilton’s leave of
absence.
Thereafter, Hamilton requested an accommodation based on her
provider’s recommendation to “return to work out in the field.” Id. at 343. Based
on documentation from The Brook, MSD allowed Hamilton to transfer back to a
field position. She began work as a Utility Trainee on July 13, 2019.1 Hamilton
continued to work in field positions with MSD until early 2021. In February 2021,
she was injured again and filed a third workers’ compensation claim. She did not
return to work at MSD after this injury.
On October 30, 2020, while she was still employed by MSD,
Hamilton filed a complaint in Jefferson Circuit Court alleging disability
discrimination, hostile work environment, workers’ compensation retaliation, and
1 In this position, Hamilton was a member of the Laborers International Union of North America (“LIUNA”). Under the union’s collective bargaining agreement’s seniority rules, she was required to transfer back to a trainee position. After the 30-day probationary period, she progressed back to the position of Utility Worker II. The agreement also governed the way LIUNA members were able to change shifts based on seniority. R. at 346.
-5- negligent infliction of emotional distress (“NIED”). Thereafter, MSD moved for
summary judgment on Hamilton’s claims.
In its October 6, 2022 judgment, the trial court granted summary
judgment on all claims except the NIED claim. The court determined there
remained genuine issues of material fact as to Hamilton’s NIED claim. Thereafter,
MSD again moved for summary judgment on Hamilton’s remaining claim. On
January 30, 2023, the court granted summary judgment. Relying on Johnson v.
Pennyrile Allied Community Services, No. 5:20-CV-071-TBR, 2022 WL 1004873
(W.D. Ky. Apr. 4, 2022), the trial court held Hamilton’s NIED claim was
preempted by the Kentucky Civil Rights Act (“KCRA”) because the claims were
based on the same underlying facts.
This appeal followed.
STANDARD OF REVIEW
The proper standard of review on appeal when a trial judge has granted a motion for summary judgment is whether the record, when examined in its entirety, shows there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. The trial judge must view the evidence in a light most favorable to the nonmoving party, resolving all doubts in its favor. Because summary judgment does not require findings of fact but only an examination of the record to determine whether material issues of fact exist, we generally review the grant of summary judgment without deference to either the trial court’s assessment of the record or its legal conclusions.
-6- Phoenix American Administrators, LLC v. Lee, 670 S.W.3d 832, 838 (Ky. 2023)
(citation omitted).
ANALYSIS
On appeal, Hamilton argues summary judgment should not have been
granted on her claims because (1) she provided adequate evidence of workers’
compensation retaliation; (2) she provided adequate evidence of disability
discrimination; (3) she showed a pattern of severe and pervasive conduct to
support her hostile work environment claim; and (4) NIED is a “stand alone
claim.”
First, Hamilton failed to establish a prima facie case of workers’
compensation retaliation. “No employee shall be harassed, coerced, discharged, or
discriminated against in any manner whatsoever for filing and pursuing” a
workers’ compensation claim. KRS2 342.197(1). In a claim for workers’
compensation retaliation, a plaintiff must prove:
(1) he engaged in a protected activity; (2) the defendant knew that the plaintiff had done so; (3) adverse employment action was taken; and (4) that there was a causal connection between the protected activity and the adverse employment action.
Dollar General Partners v. Upchurch, 214 S.W.3d 910, 915 (Ky. App. 2006)
(citing Brooks v. Lexington-Fayette Urban County Housing Authority, 132 S.W.3d
2 Kentucky Revised Statutes.
-7- 790, 803 (Ky. 2004)). It is uncontested that Hamilton engaged in protected activity
by filing two workers’ compensation claims in 2012 and 2014.3
As to the second element, Hamilton argues all employees of MSD had
constructive knowledge of her workers’ compensation claims. However, she did
not first raise this argument before the trial court.4 “An issue cannot be raised for
the first time on appeal; the trial court must be given an opportunity to rule on a
claim before it can be addressed by an appellate court.” Brooks v. Byrd, 487
S.W.3d 913, 919 (Ky. App. 2016). On this basis, we will not consider the merits
of Hamilton’s constructive knowledge argument.
Hamilton further alleges Austin knew about her workers’
compensation claims. A plaintiff must show the decision-makers who control
decisions regarding the plaintiff’s employment knew about the protected activity.
See Asbury University v. Powell, 486 S.W.3d 246, 258 (Ky. 2016) (citation
omitted). Hamilton alleges Austin knew of her workers’ compensation claims
because she knew Hamilton was injured and “reviewed daily reports indicating
3 During oral arguments, the parties both stated Hamilton’s workers’ compensation claims were filed in 2014 and 2016. The record on appeal indicates Hamilton’s injuries occurred in 2012 and 2014 but is less clear as to the precise dates on which her claims were filed. Our analysis is the same regardless of whether her last claim was filed in 2014 or 2016. 4 In her brief, Hamilton does not state where and in what manner this, or any other argument, is preserved. Rules of Appellate Procedure (“RAP”) 32(A)(4). Our review of the record indicates she did not raise this argument in her response to MSD’s motion for summary judgment. R. at 473-97.
-8- who was off work[.]” Appellant’s Brief at 10.5 Being aware of Hamilton’s injury
does not prove Austin knew about her workers’ compensation claims. Similarly,
Austin’s review of absence reports does not prove she knew of the reason for each
absence. Moreover, Hamilton alleges only that Austin generally reviewed these
reports, not that she specifically reviewed reports that included Hamilton’s
absences or that she had any knowledge of Hamilton’s attendance records in the
time preceding her transfer to the dispatch department. Hamilton cites to nothing
in the record showing any other decision-makers, including Basil, knew about her
workers’ compensation claims.6
Assuming, in arguendo, Hamilton sufficiently proved Austin’s
knowledge, she failed to prove a causal connection between that knowledge and
the alleged employment actions. Hamilton claims she was subject to employment
actions including two suspensions, poor performance evaluations, her PIP, and
“severe emotional distress and abuse.” Id. at 11. Within her argument, she does
not specify what constituted the alleged severe emotional distress and abuse.
Without sufficient development of her argument, we cannot find this constitutes an
5 Hamilton asserts this is direct evidence of Austin’s knowledge. However, MSD correctly characterizes this as circumstantial evidence. See Charalambakis v. Asbury University, 488 S.W.3d 568, 577 (Ky. 2016) (citation omitted) (“direct evidence . . . does not require a factfinder to draw any inferences”). 6 Basil began working for MSD in 2015. She was not employed by MSD at the time Hamilton filed her workers’ compensation claims.
-9- employment action under Upchurch, 214 S.W.3d at 915 (citation omitted).
Additionally, neither poor performance evaluations nor a PIP amount to adverse
employment actions without proof that they adversely impacted the employee’s
wages or salary. See Tuttle v. Metropolitan Government of Nashville, 474 F.3d
307, 322 (6th Cir. 2007) (citation omitted); see also Agnew v. BASF Corp., 286
F.3d 307 (6th Cir. 2002). Therefore, only Hamilton’s two suspensions qualify as
adverse employment actions.
As is the case with most cases of alleged retaliation, there is no
“smoking gun” showing Austin reported Hamilton’s conduct to HR or that Basil
suspended her because of her workers’ compensation claims. See Powell, 486
S.W.3d at 258. This means Hamilton must establish causation by circumstantial
evidence. Id. (citation omitted). She must prove: “(1) the decision-maker
responsible for making the adverse decision was aware of the protected activity at
the time that the adverse decision was made, and (2) there is a close temporal
relationship between the protected activity and the adverse action.” Id. (citation
omitted).
Hamilton’s claim fails on both elements. As explained above, Basil is
the decision-maker who suspended Hamilton. Hamilton cites to nothing in the
record from which this Court could reasonably infer Basil had any knowledge of
Hamilton’s workers’ compensation claims. Furthermore, while she attempts to
-10- show Austin, as the person who reported her to HR before both suspensions, knew
of her claims, the evidence shows only that Austin likely knew Hamilton had been
injured before transferring to the dispatch department. Additionally, there was no
close temporal proximity between Hamilton’s workers’ compensation claims and
her suspensions. She filed her claims in 2012 and 2014 and was not suspended
until 2018 and 2019. This is insufficient to prove causation.
Because Hamilton failed to prove a prima facie claim of workers’
compensation retaliation, summary judgment was appropriate.
Second, Hamilton’s claim of disability discrimination fails as a matter
of law. It is unlawful for an employer to “discriminate against an individual with
respect to compensation, terms, conditions, or privileges of employment . . .
because the person is a qualified individual with a disability[.]” KRS
344.040(1)(a). To establish a prima facie claim of disability discrimination, a
plaintiff must prove:
(1) that she had a disability within the meaning of KRS 344.010(4); (2) that, despite the disability, she was otherwise qualified to perform the essential functions of the job in question, either with or without reasonable accommodation; (3) that she suffered an adverse employment action because of her disability; and (4) that she was replaced by a non-disabled person or that similarly situated non-disabled employees were treated more favorably.
-11- Larison v. Home of the Innocents, 551 S.W.3d 36, 41 (Ky. App. 2018) (citation
Under the KCRA, “disability” is defined as
(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.
KRS 344.010(4). Major life activities include, but are not limited to, “walking,
seeing, hearing, performing manual tasks, caring for oneself, speaking, breathing,
learning, and working.” Turner v. Norton Healthcare, Inc., 681 S.W.3d 26, 33
(Ky. 2023) (citation omitted). “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 v. The Courier-Journal, 138 S.W.3d 699,
707 (Ky. App. 2004).
Here, Hamilton alleges her disabilities include diabetes, generalized
anxiety, and the leg and ankle injuries she sustained on the job. First, she claims
she is disabled because her injuries required surgery. However, an injury
necessitating surgery is not determinative of disability. In fact, generally, where
treatment has remedied an impairment, it is not substantially limiting. Turner, 681
S.W.3d at 33 (citation omitted). Hamilton cites to nothing which proves her prior
-12- injuries had anything more than short-term, temporary effects. See Larison, 551
S.W.3d at 43 (citation omitted). Without proof that her injuries substantially limit
any major life activity, they do not qualify as a disability under KRS
344.010(4)(a).
Hamilton also has not shown that her diabetes substantially limits a
major life activity. It is difficult to establish a claim for disability discrimination
based on a diabetes diagnosis. Bragdon v. Faneuil, Inc., 2022 WL 507430, at *3
(E.D. Ky. Feb. 18, 2022).7 Although an individual’s diabetes can be so severe that
it substantially limits their major life activities, “[n]umerous federal courts have
held that diabetes, even when accompanied by the use of medication and dietary
restrictions, is not necessarily a disability[.]” Sanders v. Bemis Company, Inc., No.
CV 5:21-323-DCR, 2017 WL 405920, *4 (E.D. Ky. Jan. 20, 2017) (quoting
Montalvo v. Lamy, 139 F.Supp.3d 597, 611 (W.D. N.Y. 2015)).8 Hamilton alleges
her condition prevents her from sitting for long periods of time and requires
additional breaks during the workday.9 Her medical provider indicated her
diabetes would not prevent her from performing any of her job duties. R. at 327.
7 We cite to this unpublished opinion as persuasive, not binding, authority. See RAP 41(B). 8 See supra note 7. 9 Hamilton also claims her diabetes requires her to take additional restroom breaks. However, neither she nor her medical provider mentioned this in her request for accommodation. R. at 325-28.
-13- Therefore, Hamilton’s diabetes did not substantially limit Hamilton’s ability to
work and, therefore, is not a disability under KRS 344.010(4)(a).10
Finally, Hamilton has not shown her diagnosis of generalized anxiety
substantially limits any major life activity. During her FMLA leave, she sought
treatment and, based on the recommendation of her mental health provider, was
able to return to work and was transferred from the dispatch department back into
the field. After her release from treatment, she has continued with regular visits
with her provider. She vaguely alleges her anxiety is “debilitating,” but does not
specify what life activities it substantially limits. Without specific proof of
substantial limitation, we cannot find Hamilton has proven her anxiety is a
disability under KRS 344.010(4)(a).
Furthermore, Hamilton has not proven she was regarded as disabled
under KRS 344.010(4)(c). It is “extraordinarily difficult” to prove a disability
discrimination claim under this subsection because it depends almost exclusively
on the employer’s subjective state of mind. Ross v. Campbell Soup Co., 237 F.3d
701, 709 (6th Cir. 2001). It is not enough for a plaintiff to prove only that her
employer was aware of her symptoms or condition. Baum v. Metro Restoration
Services, Inc., 240 F. Supp. 3d 684, 693 (W.D. Ky. 2017) (citation omitted).
10 See DePrisco v. Delta Air Lines, Inc., 90 F.App’x 790, 794-95 (6th Cir. 2004) (holding a plaintiff’s need to briefly walk around every hour is not a substantial limitation on her ability to work).
-14- Instead, she must show her employer thought she was disabled and “that [her]
disability would prevent [her] from performing a broad class of jobs.” Howard
Baer, Inc. v. Schave, 127 S.W.3d 589, 594 (Ky. 2003) (citation omitted). Herein,
at most, Hamilton showed Austin may have been aware of the injury that led to her
transfer to the dispatch department, knew of her diabetes diagnosis, and knew
Hamilton took a leave of absence but did not know she sought treatment for
anxiety. Even if Austin had this knowledge, Hamilton cites to no evidence proving
she regarded her as unable to perform her job responsibilities because of an
impairment.
Because Hamilton failed to establish herself as disabled under the
KCRA, her claim for disability discrimination fails.
Next, Hamilton’s hostile work environment claim fails on the same
grounds. Under the Americans with Disabilities Act (“ADA”), to establish a claim
for hostile work environment, a plaintiff must prove “(1) she was disabled; (2) she
was subject to unwelcome harassment; (3) the harassment was based on her
disability; (4) the harassment unreasonably interfered with her work performance;
and (5) the defendant either knew or should have known about the harassment and
failed to take corrective measures.” Trepka v. Board of Education, 28 F. App’x
-15- 455, 461 (6th Cir. 2002) (citations omitted).11 Hamilton’s failure to prove she is
disabled under KRS 344.010(4) is fatal to her hostile work environment claim.
Finally, Hamilton’s NIED claim is preempted by the KCRA. This
Court has previously held claims of intentional infliction of emotional distress
(“IIED”) are subsumed by KCRA claims based on the same facts. Wilson v.
Lowe’s Home Center, 75 S.W.3d 229, 239 (Ky. App. 2001), superseded on other
grounds by Owen v. University of Kentucky, 486 S.W.3d 266 (Ky. 2016). The
purpose of the KCRA is “[t]o safeguard all individuals within the state from
discrimination . . . because of the person’s status as a qualified individual with a
disability . . . thereby to protect their interest in personal dignity and freedom from
humiliation[.]” KRS 344.020(1)(b). This Court has interpreted the statute to allow
plaintiffs to seek damages for “humiliation and personal indignity.” Wilson, 75
S.W.3d at 239 (citation omitted). Claims of IIED similarly allow plaintiffs to seek
damages for intentional emotional distress. Id. (citation omitted). “Where the
statute both declares the unlawful act and specifies the civil remedy available to the
aggrieved party, the aggrieved party is limited to the remedy provided by the
statute.” Id. (citation omitted). Because the same facts form the basis for both
Hamilton’s NIED and KCRA claims, the former is subsumed by the latter. See
11 We rely on the ADA standard because, in relevant part, the purpose of the KCRA is “[t]o provide for execution within the state of the policies embodied” in the ADA. KRS 344.020(1)(a).
-16- Johnson, 2022 WL 1004873, at *17. Therefore, summary judgment was
appropriate.
CONCLUSION
Based on the foregoing, the October 6, 2022 and January 30, 2023
judgments of the Jefferson Circuit Court are affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT BRIEF FOR APPELLEE: FOR APPELLANT: Alina Klimkina Marilyn Shrewsbury Donald C. Morgan Eddyville, Kentucky Louisville, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Alina Klimkina Louisville, Kentucky
-17-