Kimetta Sublett v. Masonic Homes of Ky., Inc. ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0286n.06
Case No. 21-5959
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Jul 18, 2022
KIMETTA SUBLETT, DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
MASONIC HOMES OF KENTUCKY, INC., ) DISTRICT OF KENTUCKY
Defendant-Appellee. )
) OPINION
Before: SILER, McKEAGUE, and LARSEN, Circuit Judges.
McKEAGUE, Circuit Judge. Plaintiff appeals the district court’s order granting summary
judgment in favor of Defendant on Plaintiff’s claims that Defendant violated the Americans with
Disabilities Act and the Kentucky Civil Rights Act by discriminating against her in employment
based upon disability and age, failing to accommodate her disability, and retaliating against her
for protected activity. We affirm.
I.
Plaintiff-Appellant Kimetta Sublett is a former employee of Defendant-Appellee Masonic
Homes of Kentucky (MHK). Sublett worked for MHK for over thirty years, first as a nurse aide
and then working her way up to Director of MHK’s Pillars Assisted Care Center. In January 2017,
Sublett was diagnosed with “moderate emphysema,” which she disclosed to MHK Human
Case No. 21-5959, Sublett v. Masonic Homes of Kentucky, Inc.
Resources employee Paula Walker. Sublett also claims to have told CEO Gary Marsh of her
emphysema diagnosis to explain why she could not participate in a work event. Sublett alleges that
Marsh expressed sympathy for her condition. While working at Pillars, Sublett asked for a closer
parking spot so that she wouldn’t get as winded walking into work, which she received.
In late 2017, MHK decided to merge the Pillars facility with a new MHK facility. The
Pillars Director role was eliminated in favor of a combined director position for the merged
facilities. In December 2017, Sublett was informed by Marsh and J. Scott Judy (COO of MHK)
that her position was being eliminated and that they were considering transferring her to a new
position at a different facility named Miralea.
In April 2018, Sublett assumed her new position as Resident Services Manager (“RSM”)
at Miralea, reporting to Director Mike Truax. Truax had previously acted as RSM at Miralea,
earning a salary of $97,000 per year. Upon transitioning from Director at Pillars to RSM at Miralea,
Sublett’s salary increased from $65,000 to $75,000. As RSM, her duties involved substantially
similar skills to her duties at Pillars. Sublett outwardly expressed excitement about the transfer.
However, she attests that she was inwardly upset about it, and that she was told she could not
refuse the move. Chris Just was hired as the Associate Executive Director of Pillars in February
2018, with the intention that he would become director of the merged facilities once the merger
was complete. He immediately assumed duties additional to those which had been performed by
Sublett.
While at Miralea, Sublett and Truax spoke at least twice about her emphysema. Truax
testified that he and Sublett primarily talked about her doctor advising her to get more exercise
and change her diet. He attested that he understood that emphysema is a lung disease marked by
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“diminished airflow to the lungs.” Truax acknowledged that emphysema can be “exasperated”
such that it significantly interferes with respiratory functions.
At the Miralea facility, Sublett alleges that her emphysema made it difficult for her to walk
the long distance from where she had to park to the building. Sublett attests that she told Truax of
this problem, citing her emphysema and asking him and Marty Hess, a facilities worker, for closer
parking. Truax told her to park in the overflow lot, and said that she could use her badge to get
into a door closer to the lot. Sublett’s badge did not work on the door when she tried to use it, so
she attempted to park in a vacant parking space next to the building, but Truax dissuaded her from
doing so. After that, she parked in the main employee lot. Sublett claims that even this parking
spot was not sufficient for her, as she still had to walk some distance, often in the heat. Sublett also
alleges that she requested to be excused from being asked to participate in voluntary, physically-
demanding tasks such as waiting on the residents at Miralea’s cafeteria and rearranging furniture,
due to her emphysema and attendant difficulties. Truax testified that Sublett did request to be
excused from helping in the cafeteria, saying it was “too hard,” but that Sublett did not state that
the request was due to any illness. After her request, Sublett was no longer asked to help with
meals. However, Sublett claims that she was still asked to do heavy lifting, such as furniture
rearrangement.
Beginning in May 2018, Sublett was allegedly involved in several incidents at work
resulting in complaints, including: (1) using a derogatory term in the cafeteria in front of residents;
(2) disclosing confidential patient information over the phone out in the open, potentially violating
HIPAA; and (3) calling her coworker a profane term in potential earshot of residents. The first
incident was reported to Truax by a resident’s daughter. Truax spoke with witnesses (Sublett’s
coworkers) regarding the other two incidents. He did not interview one employee, Gertrude Reed,
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who alleges she was at the scene of the third incident and denies the use of profanity by Sublett.
Sublett denies wrongdoing in all three incidents.
After each of these incidents, Truax had a discussion with Sublett about her alleged
behavior. After the third incident, Truax called a meeting on July 24, 2018, with Sublett and Brandi
Muir, an office manager. At this meeting, Truax presented Sublett with a Performance
Improvement Plan (“PIP”) based on the three incidents. The PIP asked Sublett to “address
interpersonal skills,” “improve communication techniques,” “participate in periodic coaching
sessions with [Truax and HR],” and “complete interpersonal communication training.” R. 50-13
at 255-56. It did not require her to admit that the incidents in fact occurred. At the meeting, Sublett
became upset, and continued to deny the allegations. She refused to agree to the PIP, or even read
it fully. Truax asked Sublett to meet again the next day after a cooling off period. At that meeting,
attended by Sublett, Truax, Muir, and Trasee Whitaker (MHK’s Chief Human Resources Officer),
Sublett again refused to sign and accept the PIP. Truax asked Sublett to leave the room, and then
allegedly decided to terminate her for insubordination for refusing to participate in the PIP. After
her termination, Truax created an RSM job description indicating that the position requires a
significant amount of physical activity.
Sublett filed an action in Jefferson Circuit Court (Kentucky), which was subsequently
removed to United States District Court for the Western District of Kentucky. In her complaint,
Sublett asserted claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101,
and the Kentucky Civil Rights Act (“KCRA”), KRS Chapter 344. Following discovery, MHK
moved for summary judgment, which the district court granted for all claims.
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II.
We review a district court’s grant of summary judgment de novo, viewing the evidence in
the light most favorable to the non-movant. Fisher v. Nissan N. Am., Inc., 951 F.3d 409, 416 (6th
Cir. 2020). Summary judgment is appropriate when there are no genuine issues of material fact
and a party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986); Fed. R. Civ. P. 56(a). The plaintiff must provide more than a mere “scintilla” of evidence:
“there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477
U.S. at 252. “Credibility determinations, the weighing of evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge” when ruling on a motion for
summary judgment. Id. at 255 (citing Adickes v. S H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
Sublett appeals the district court’s grant of summary judgment on her disability
discrimination, age discrimination, accommodation, and retaliation claims. We address each in
turn.
A. ADA/KCRA disability discrimination claim
Sublett alleges that MHK discriminated against her on the basis of her disability, in
violation of the ADA and the KCRA.1 The burden-shifting framework laid out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), governs the use of circumstantial evidence in a
disability discrimination case. See Thompson v. Fresh Prods., LLC, 985 F.3d 509, 522 (6th Cir.
2021). Where, as here, the plaintiff does not provide direct evidence of intentional discrimination,
she bears the burden of proving a prima facie case of disability discrimination. See id. This consists
1
Kentucky courts interpret the KCRA parallel to federal law and rely on federal case law in
interpreting the KCRA. 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.” (citations omitted)). This Court will follow suit and discuss
the alleged violations of both the ADA and the KCRA together.
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of proving: “(1) he or she is disabled; (2) otherwise qualified for the position, with or without
reasonable accommodation; (3) 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 individual was replaced.” Tennial v. United
Parcel Serv., Inc., 840 F.3d 292, 306 (6th Cir. 2016) (quoting Whitfield v. Tennessee, 639 F.3d
253, 258–59 (6th Cir. 2011)). Once this burden is met, the onus shifts to the defendant to provide
a legitimate, non-discriminatory reason for any demonstrated adverse employment action. See
Morrissey v. Laurel Health Care Co., 946 F.3d 292, 298 (6th Cir. 2019). If in turn the defendant
meets this burden, the plaintiff bears the ultimate burden of demonstrating that “the proffered
explanation is pretextual.” Id. (quoting Ferrari v. Ford Motor Co., 826 F.3d 885, 892 (6th Cir.
2016)). Here, while Sublett may have established a prima facie case of disability discrimination,
she has not provided sufficient evidence of pretext such that a reasonable jury could rule in her
favor.
a. Prima facie case
Sublett asserts that she is disabled due to her diagnosis of emphysema, and that her over
thirty years of service for MHK demonstrate that she is qualified for the Pillars Director and
Miralea RSM positions. MHK does not challenge these claims. Sublett’s replacement after
termination, Shannon Wolfe, is not disabled. Thus, we will assume that the first, second, and fifth
prongs of the test are satisfied, leaving only the question of whether Sublett suffered an adverse
employment action and whether MHK knew or had reason to know that she was disabled.
i. Adverse employment action
Adverse employment actions are “materially adverse change[s] in the terms and conditions
of [a plaintiff’s] employment.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th
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Cir. 2004) (en banc) (citation omitted). An adverse employment action must be more than a mere
“bruised ego” or “inconvenience or an alteration of job responsibilities.” Id. at 797 (citation
omitted). Adverse employment actions are usually denoted by a “significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Id. at 798 (quoting
Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998)).
Sublett proffers three potential adverse employment actions. First, she alleges that she was
“severely underpaid” in comparison to her “non-disabled counterparts,” both as Pillars Director
(compared to the Director salaries of Truax and her replacement, Just) and as Miralea RSM
(compared to Truax’s previous salary as Miralea RSM). See Appellant’s Br. at 32–33. Regarding
her Director salary, Sublett never alleges that her pay in that position changed at all after she was
diagnosed with emphysema or after she told anyone at MHK about her diagnosis. Her Director
salary thus cannot be considered an adverse employment action, as there was no “materially
adverse change.” White, 364 F.3d at 795. Sublett’s argument that the Director salary disparity
constitutes an adverse employment action fails for the additional reason that she has not provided
evidence that a similarly situated, non-disabled employee was paid more for the same work.
Sublett’s replacement at Pillars, Just, was hired with the intention of directing two combined
facilities, and he instantly took on additional duties that Sublett did not perform.
And while Sublett points to Truax’s salary in the RSM position as compared to hers, MHK
provides evidence that Truax was not similarly situated, even if the roles were the same. Based on
his past employment as Vice President of Therapy Services, Truax was considered an executive
employee, whose salary did not change when he assumed the RSM role. Sublett has provided no
counter evidence indicating that Truax is an apt comparator beyond sharing the same job title.
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Thus, Sublett has not sufficiently proved that the pay disparity in the RSM position constitutes an
adverse employment action.
Sublett also alleges that her involuntary transfer from Pillars Director to Miralea RSM
constitutes an adverse employment action. She points to the fact that as RSM she was subordinate
to the Miralea director, a position which Truax described as “on the same playing field” as her
former Pillars Director position. See Appellant’s Br. at 33–36; R. 57-3 at PID 405. Truax attested
that he considered the move from RSM to Director a promotion for himself. The district court
determined that the transfer was not adverse, noting Sublett’s increase in salary, the substantially
similar job duties, and the fact that the Pillars Director position was in the process of being
eliminated.2
It is unclear whether Sublett’s transfer was an adverse action. Her salary did increase,
indicating that the move was a promotion. But this Court has held that “[a] reassignment without
salary or work hour changes . . . may be an adverse employment action if it constitutes a demotion
evidenced by ‘a less distinguished title, a material loss of benefits, significantly diminished
material responsibilities, or other indices that might be unique to a particular situation.’” White,
364 F.3d at 797 (quoting Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 886 (6th Cir. 1996)). However,
because Sublett cannot demonstrate pretext, as described below, it is unnecessary to decide
whether the transfer constitutes an adverse employment action. We therefore presume—without
deciding—that the transfer was adverse.
2
The district court’s focus on the elimination of the Pillars Director position is slightly misplaced,
as that fact speaks to the reasoning behind an adverse action, not the nature of the action itself. The
elimination of a position can constitute an adverse employment action if the reasons behind the
elimination are discriminatory. See, e.g., Schutter v. Harold Zeigler Auto Grp., Inc., 416 F. Supp.
3d 708, 718 (W.D. Mich. 2019) (“Conceivably, [the] elimination of [Plaintiff’s] corporate
marketing manager position could constitute an adverse action.”).
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Finally, Sublett alleges that her termination constitutes an adverse employment action. As
the district court correctly concluded, termination is a textbook adverse employment action, and
MHK admits as much. See Appellee’s Br. at 21 (“The District Court correctly recognized that
termination of employment is considered an adverse employment action.”). Thus, Sublett has
provided sufficient evidence that she suffered an adverse employment action, satisfying the third
prong of the prima facie case.
ii. Knowledge of disability
The district court concluded that, for the purposes of this motion, it must presume that
MHK knew that Sublett was disabled. We agree. In establishing a prima facie case of
discrimination, a plaintiff must demonstrate that the decisionmaker who instigated the allegedly
discriminatory action knew or believed that the employee was disabled. See Burns v. City of
Columbus, Dep’t of Pub. Safety, Div. of Police, 91 F.3d 836, 843 (6th Cir. 1996). In Sublett’s case,
the alleged discriminators are Marsh and Judy, who decided to transfer Sublett to the RSM
position, and Truax, who made the decision to fire her. Sublett alleges that she told Marsh of her
emphysema (and asked for accommodations) prior to her transfer. She also alleges that she
discussed her emphysema with Truax multiple times, both in the context of asking for
accommodations and in regular conversation, the latter of which Truax admits. MHK presented
evidence in response—namely, Truax’s testimony that he only spoke with Sublett informally
regarding her emphysema, that he did not understand that her emphysema made her disabled, and
that he did not think that her request to be relieved from waiting on the residents was due to
disability.
Both sides presented evidence on this issue chiefly in the form of testimony, and, at the
summary judgment stage, “credibility judgments and weighing of the evidence are improper.”
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Hostettler v. College of Wooster, 895 F.3d 844, 852 (6th Cir. 2018) (citing Rorrer v. City of Stow,
743 F.3d 1025, 1038 (6th Cir. 2014)). Taking the evidence in the light most favorable to the
plaintiff, Truax has admitted that he knew Sublett had emphysema and that he had a general
understanding of what emphysema was. Thus, for the purposes of a motion for summary judgment,
the district court was correct to assume that Sublett demonstrated knowledge of her claimed
disability, and we do the same. Sublett has therefore established a prima facie case of disability
discrimination.
b. Legitimate, non-discriminatory rationale and pretext
Once a plaintiff demonstrates a prima facie case of discrimination, the defendant must
provide a legitimate, non-discriminatory rationale for the allegedly discriminatory actions. The
burden then shifts to the plaintiff to prove that the provided rationale is pretextual. See Morrissey
v. Laurel Health Care Co., 946 F.3d 292, 298 (6th Cir. 2019). A plaintiff can establish pretext in
three ways: evidence “(1) that the proffered reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate the employer’s action, or (3) that they were insufficient to
motivate the employer’s action.” Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 839 (6th
Cir. 2012) (citation omitted).
MHK supplied evidence that Sublett’s transfer to RSM—which we have assumed
constitutes an adverse employment action—was motivated by the elimination of her position, due
to the merging of two facilities. This is a non-discriminatory rationale, meeting MHK’s burden. In
response, Sublett points only to the fact that her successor, Just, did not actually assume
management duties over both facilities until several months after her transfer. However, this
contention does not rebut testimony from MHK employees that the merging of facilities and Just’s
combined Director role were intended before Sublett was transferred and were the reason for that
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transfer. Just also immediately assumed additional duties to those performed by Sublett in the role.
Sublett has therefore failed to provide evidence from which a reasonable jury could conclude that
the reason behind her transfer was pretextual, and that discrimination was the true motivating
factor.
MHK also supplied evidence that Sublett’s termination was motivated by her
insubordination in refusing to sign a PIP addressing performance issues. This court has repeatedly
found that “insubordination may constitute a legitimate, nondiscriminatory reason for adverse
action.” Fullen v. City of Columbus, 514 F. App’x 601, 606 (6th Cir. 2013) (collecting cases).
Sublett argues that this justification is pretextual because: (1) the underlying events
motivating the PIP are false, and the investigation into and documentation of those events was
subpar and in violation of MHK’s own policies; (2) Truax rewrote the RSM job description after
Sublett’s termination to include more physical activity; (3) Sublett’s behavior was not sufficient
to motivate her termination; and (4) there was temporal proximity between “increased scrutiny”
of Sublett’s behavior and disclosure of her disability. These contentions do not constitute sufficient
evidence of pretext.
First, the truth of the underlying events of the PIP is irrelevant in this case. The crucial
factor is whether the individual who terminated her—Truax—honestly believed that the
underlying events occurred, and whether he fired Sublett due to her refusal to sign the PIP
addressing those events. As this Court has previously stated: “If an employer has an honest belief
in the nondiscriminatory basis upon which it has made its employment decision (i.e. the adverse
action), then the employee will not be able to establish pretext. . . . [W]hen an employer reasonably
and honestly relies on particularized facts in making an employment decision, it is entitled to
summary judgment on pretext even if its conclusion is later shown to be mistaken, foolish, trivial,
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or baseless.” Tingle v. Arbors at Hilliard, 692 F.3d 523, 530–31 (6th Cir. 2012) (citation omitted).
Sublett has provided no evidence beyond conjecture that Truax did not believe that the events
motivating the PIP actually occurred. MHK also does not allege that she was fired for those acts
alone, but chiefly for her refusal to sign the PIP addressing them. Sublett does not allege that that
specific incident did not occur.
Further, Sublett’s objections to the quality of the investigation and documentation are
insufficient to establish that Truax acted unreasonably or unreasonably believed she was guilty of
the offenses in the PIP. Employers are not required to conduct the most thorough investigation
possible; rather, “the key inquiry is whether the employer made a reasonably informed and
considered decision before taking an adverse employment action.” Smith v. Chrysler Corp., 155
F.3d 799, 807 (6th Cir. 1998) (“[W]e do not require that the decisional process used by the
employer be optimal or that it left no stone unturned.”). While Sublett complains that Truax failed
to interview a particular witness to one of the events, Truax interviewed Sublett and all other
present witnesses, and otherwise relied upon a customer complaint. This investigation is
reasonable in its scope.
In addition, Sublett’s claims that Truax violated MHK’s internal policies during the
disciplinary process are unhelpful to her here, as she has supplied no evidence that similarly
situated, non-disabled employees were treated differently than she was (i.e., that the rules were
followed for others and not for her). “[A]n employer’s failure to follow self-imposed regulations
or procedures is generally insufficient to support a finding of pretext.” Miles v. S. Cent. Hum. Res.
Agency, Inc., 946 F.3d 883, 896 (6th Cir. 2020) (citation omitted); see also Gunn v. Senior Servs.
of N. Ky., 632 F. App’x 839, 847 (6th Cir. 2015) (“An employer’s failure to follow internal
disciplinary protocols is most probative when coupled with evidence that the employer followed
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the protocols for people outside of plaintiff’s protected class.”). While “failure to uniformly apply
a progressive discipline policy can be evidence of pretext,” Miles, 946 F.3d at 896, Sublett has
provided no such evidence of selective application. Sublett has therefore presented insufficient
evidence to demonstrate that Truax acted unreasonably.
Second, Sublett’s evidence regarding the creation, after her termination, of an RSM job
description which included significant physical activity, is insufficient to support a finding of
pretext.3 Sublett offers no case law in support of her position that a job description created after an
employee was fired is relevant to the intention behind the termination. Further, MHK provided
testimonial evidence that Truax intended to evolve the RSM position after Sublett left for a non-
discriminatory reason—the opening of a new facility. Sublett has provided no evidence to counter
that contention beyond testimony from one MHK employee that the job currently remains largely
sedentary. However, that fact alone does not indicate that Truax did not honestly, at the time he
wrote the description, intend to transform the job into a more physical one based on the opening
of a new facility. The bare assertion that the change in job description indicates pretext is thus
insufficient evidence upon which a reasonable jury could rely.
Third, Sublett has failed to demonstrate that she did not commit an offense sufficient to
motivate her termination. MHK provided clear evidence indicating that Sublett’s conduct
immediately prior to her termination—refusing to sign her PIP or even read it in full—was a
fireable offense under MHK policy. The MHK employee handbook states that level 3
misconduct—which calls for termination—includes “[w]illful failure to perform job duties . . . or
act of insubordination.” R. 50-15 at PID 268, 271. By refusing to sign or interact with the PIP—
3
Sublett characterizes this action as Truax “modifying” a previous job description. See Appellant’s
Br. at 26. However, the evidence indicates that the previous job description was for a different
position, which was used as a base for the RSM description, which did not previously exist.
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which did not require her to admit wrongdoing, but rather just to agree to work on her behavior—
as her supervisor, Truax, requested her to do, Sublett acted insubordinately. Sublett has also not
pointed to any employees who acted in a similar manner who were not fired, further damaging her
claim. See Greene v. United States Dep’t of Veterans Affs., 605 F. App’x 501, 508 (6th Cir. 2015)
(concluding that the plaintiff was unable to demonstrate that “her conduct was insufficient to
warrant her termination” as she could not show that “employees not in the protected class were
not fired even though they engaged in substantially identical conduct”) (citation omitted)). Thus,
Sublett’s argument that her behavior did not warrant dismissal fails.
Finally, the temporal proximity argument, on its own, fails because “temporal proximity is
insufficient in and of itself to establish that the employer’s nondiscriminatory reason for
discharging an employee was in fact pretextual.” Skrjanc v. Great Lakes Power Serv. Co., 272
F.3d 309, 317 (6th Cir. 2001). As the other evidence marshalled by Sublett is either irrelevant or
insufficient, temporal proximity is not enough to establish pretext in this case.
B. ADA/KCRA failure to accommodate claim
Sublett next alleges that MHK failed to accommodate her disability in violation of the ADA
and the KCRA. To prevail on her failure to accommodate claim, Sublett must establish that:
“(1) she was disabled within the meaning of the [statute], (2) she was otherwise qualified for her
position, with or without reasonable accommodation; (3) the defendant knew or had reason to
know about her disability; (4) she requested an accommodation; and (5) the defendant failed to
provide the necessary accommodation.”4 Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Schs.,
4
MHK argues that the requested accommodation must be for an “essential function” of the
employee’s job. See Appellee’s Br. at 51-52. However, there is no requirement that the requested
accommodation relate to an essential function. See, e.g., Williams v. AT&T Mobility Servs. LLC,
847 F.3d 384, 391 (6th Cir. 2017) (“An employee is deemed qualified only if she can perform all
of the essential functions of her job, whether accommodated or not.”); see also Sanchez v. Vilsack,
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974 F.3d 652, 669 (6th Cir. 2020). While there is “no bright-line test for when the form of an
employee’s request is sufficiently clear to constitute a request for an accommodation, . . . [an
employee] must make it clear from the context that [the request] is being made in order to conform
with existing medical restrictions.” Deister v. Auto Club Ins. Ass’n, 647 F. App’x 652, 657 (6th
Cir. 2016) (citation omitted). As stated previously, MHK does not contest that Sublett is disabled
or that she is otherwise qualified for the position, and we presume Truax knew about Sublett’s
disability. The sole remaining disputes are therefore whether Sublett requested any
accommodations and whether MHK failed to provide necessary accommodations.
Sublett alleges that she made multiple accommodation requests: (1) to stop waiting on
residents at Miralea’s cafeteria; (2) to get closer parking; and (3) to be excused from other
physically demanding tasks such as heavy lifting and rearranging furniture. For each of these three
requests, she asserts that she specifically linked her request to her disability. In response, MHK
argues that Sublett did not specify that any of her requests were due to her disability, citing
testimony from Truax.5 Summary judgment in favor of MHK was proper on Sublett’s claims.
Regarding waiting on residents, Sublett does not deny that Truax relieved her of this
responsibility upon request. She was thus granted the accommodation she requested and cannot
establish a failure to accommodate claim on this point.
695 F.3d 1174, 1181 (10th Cir. 2012) (“[E]mployers are not relieved of their duty to accommodate
when employees are already able to perform the essential functions of the job.” (quoting
Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993))).
5
MHK also asserts that the district court found that Sublett had not made any accommodation
requests. However, the portion of the district court opinion MHK cites appears to state only that
there were no accommodations requested beyond those which were granted. It does not explicitly
state that the initial request for closer parking, or the request to stop waiting on residents, were not
accommodation requests, and appears to treat them as though they were.
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Regarding parking, Sublett testified that she asked Truax to help her find closer parking,
and that he told her to park in the employee overflow lot, which was closer to the building. On its
face, this accommodation appears reasonable. Sublett did testify that she was unable to use the
door near the overflow lot, and eventually resorted to the main employee lot, where she still had
to walk a distance in the heat. However, she does not allege that she informed Truax that the
provided accommodation was insufficient to alleviate her difficulties. Thus, her initial request for
accommodation was reasonably granted. While it may not have been sufficient in the end, she did
not request further accommodation or inform her superior that the accommodation was
unacceptable. For that reason, her failure to accommodate claim in relation to parking also fails.
Finally, even taking into account the attestations in Sublett’s affidavit,6 Sublett has
provided insufficient evidence that she made an accommodation request regarding heavy lifting or
furniture rearrangement. The only evidence Sublett provides on this issue consists of statements
in her affidavit, which she attached to her response to MHK’s motion for summary judgment.
These statements—found only in a self-serving affidavit, and not anywhere in Sublett’s deposition
testimony or other evidence revealed in discovery—do not specify dates for the alleged requests
or describe the tasks beyond general terms. This showing amounts to no more than a “scintilla” of
evidence, and thus is insufficient to create a genuine dispute for trial. See Anderson., 477 U.S. at247–48.
Sublett further asserts that MHK failed to engage in an interactive process to discuss
accommodations. This claim fails as interactive process claims require that the employee have
6
The district court excluded these statements as contradicting her deposition testimony. It is
unnecessary for us to decide this issue, as even with the statements in her affidavit, Sublett has
failed to provide sufficient evidence that she made an accommodation request regarding these
activities.
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Case No. 21-5959, Sublett v. Masonic Homes of Kentucky, Inc.
requested an accommodation that was denied, see Thompson v. Fresh Prods., LLC, 985 F.3d 509,
525 (6th Cir. 2021), and Sublett has not, as described, sufficiently proven that she made such a
request. Thus, Sublett’s failure to accommodate claim fails.
C. KCRA age discrimination claim
Sublett further alleges that MHK discriminated against her based upon her age.
Specifically, she asserts that the pay disparity between her and Truax and her and Just is based on
her age. As with her disability discrimination claim, because she lacks direct evidence, Sublett
must satisfy the McDonnell burden-shifting test. See Williams v. Wal-Mart Stores, Inc., 184
S.W.3d 492, 495 (Ky. 2005) (citation omitted). To establish a prima facie case of age
discrimination, Sublett must demonstrate that: “(1) she was over 40 years old; (2) she suffered an
adverse employment action; (3) she was qualified for the position she held; and (4) she was either
replaced by a person outside the protected class or treated differently than similarly situated
individuals.” Laws v. HealthSouth N. Ky. Rehab. Hosp. Ltd. P’ship, 508 F. App’x 404, 410–11
(6th Cir. 2012). The burden then shifts to the defendant to produce a nondiscriminatory rationale
for the challenged action. Hardin v. Jefferson Cty. Bd. of Educ., 558 S.W.3d 1, 9 (Ky. Ct. App.
2018). If the defendant does so, then the burden shifts back once again “to the plaintiff to
demonstrate by a preponderance of the evidence that the actions were motivated by his age and
that the proffered reason was a mere pretext for age discrimination.” Id.Even if Sublett has made out her prima facie case, MHK provided legitimate, non-
discriminatory reasons for the transfer, termination, and pay disparity that Sublett has failed to
sufficiently rebut. As discussed in relation to her disability discrimination claim, Sublett’s Pillars
Director position was eliminated due to the merging of two facilities, necessitating her transfer.
And Sublett was terminated from her RSM position for insubordination. In addition, as previously
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Case No. 21-5959, Sublett v. Masonic Homes of Kentucky, Inc.
described, MHK has provided evidence that neither Just nor Truax are adequate comparators for
pay, as Truax had an executive background and Just was lined up to direct the merged facilities.
Sublett has not provided any evidence regarding similarities between herself, Truax, and Just
beyond job title. Thus, Sublett has provided no evidence of pretext beyond the bare allegation that
she was paid less than younger (but not-similarly-situated) individuals, and that she was eventually
replaced by a younger individual. This is insufficient to support a claim of age discrimination. See,
e.g., Chappell v. GTE Prod. Corp., 803 F.2d 261, 267 (6th Cir. 1986) (“The isolated fact that a
younger person eventually replaces an older employee is not enough to permit a rebuttal inference
that the replacement was motivated by age discrimination.”).
D. ADA/KCRA retaliation claims
Sublett finally alleges that she suffered retaliation for her accommodation requests in
violation of the ADA and the KCRA. To establish this claim, Sublett must demonstrate that:
“(1) she engaged in a protected activity; (2) her ‘exercise of such protected activity was known by
the defendant; (3) thereafter, the defendant took an action that was “materially adverse” to the
plaintiff; and (4) a causal connection existed between the protected activity and the materially
adverse action.’” Rogers v. Henry Ford Health Sys., 897 F.3d 763, 775 (6th Cir. 2018) (quoting
Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014)).
Putting aside the first three prongs, Sublett’s claim fails because she cannot establish the
fourth prong—a causal connection. As detailed in the disability discrimination section, MHK has
provided a legitimate, non-discriminatory reason for terminating Sublett—her insubordination in
refusing to sign a PIP based on behavioral incidents reasonably investigated by MHK. Sublett has
failed to sufficiently demonstrate that this reason was pretextual, and that either her disability or
her accommodation requests led to her termination. As with the discrimination claim, the evidence
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Case No. 21-5959, Sublett v. Masonic Homes of Kentucky, Inc.
Sublett provides for the causation element of her retaliation claim is limited to temporal proximity,
failure by MHK to conform to company policy regarding investigation/documentation, and
“increased scrutiny” of her work. And as with the discrimination claim, this scant evidence is not
enough for a reasonable jury to conclude that Sublett has sufficiently proved causation. Thus, the
retaliation claim fails.
III.
For the foregoing reasons, we AFFIRM the district court’s order granting summary
judgment for Defendant-Appellee.
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