Jacob Ashby v. Ed Brady, Henderson County Sheriff ( 2021 )

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NOT TO BE PUBLISHED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.
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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
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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,
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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.
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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.
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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.
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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.
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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.”
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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,
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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.
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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.
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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
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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.
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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.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
John S. Phillips J. Christopher Hopgood
Abigail V. Lewis Davis L. Hunter
Louisville, Kentucky Henderson, Kentucky
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