Paulisa Lewis v. Norton Hospitals Inc. ( 2021 )

RENDERED: JULY 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1189-MR
PAULISA LEWIS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANNIE O’CONNELL, JUDGE
ACTION NO. 17-CI-005645
NORTON HOSPITALS, INC. APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
KRAMER, JUDGE: Paulisa Lewis, acting pro se, appeals from an order and
judgment of the Jefferson Circuit Court summarily dismissing her claims of
discrimination and retaliation against appellee, Norton Hospitals, Inc. We affirm.
Factual and Procedural Background
Lewis began working for Norton in approximately April 2017 as a
patient care associate (PCA). PCAs work under the direction of a licensed nurse
and perform various non-clinical tasks such as patient skin care, patient
transportation, checking patient vital signs, and reporting any changes in patient
condition. In June 2017, another employee asked Lewis to help her change a
patient’s dressing. Lewis responded that she would assist shortly but did not go to
the patient’s room for almost an hour. At that point, the other employee had
completed the task by herself and became irate. A verbal altercation occurred
between Lewis and the other employee. Nurse management became involved, and
Lewis and the other employee were sent home for the day. All employees who
witnessed the altercation submitted statements to the nurse manager. Although
Lewis claimed she was “threatened,” none of the employees who submitted
statements indicated they heard any threats made toward Lewis.
A couple of days after the incident, two managers met with Lewis to
explain that they had investigated the incident. They determined that although the
other employee had raised her voice, she had not threatened Lewis. The statements
from other employees also revealed several concerns about Lewis’s general work
performance that management addressed with her. Afterward, Lewis submitted a
letter in which she stated she has “mental and learning disabilities, which I have
had all my life, beginning when I was a child.” She also said she felt that she was
being discriminated against because of her disability even though she later
admitted in deposition testimony that she had never disclosed a disability to
-2-
anyone at Norton prior to the letter. She did not identify what actions she felt were
discriminatory.
Following receipt of Lewis’s letter, management again met with
Lewis, who recorded the conversation. During the meeting, Lewis stated that she
did not think she could do the job of a PCA because she had difficulty with post-
operative tasks and “keyboarding.” It was explained to Lewis that she must be
able to perform all of the essential functions of the PCA position. Because she
could not perform those tasks by her own admission, she was being placed on job
placement leave so that she could find a different position within Norton.
Management reiterated to Lewis that placing her on leave did not mean she was
being terminated and that they wanted to assist her in finding a position within
Norton that she was capable of performing.
Another meeting was arranged with Lewis to address her employment
transfer, to further discuss any restrictions due to her alleged disability, and to
provide a questionnaire for her physician to complete regarding any medical
restrictions. Lewis did not appear for the scheduled meeting and failed to return
telephone calls. A letter and the physician questionnaire were sent to Lewis, but
she failed to respond and failed to submit the completed questionnaire. As a result,
Norton terminated her employment.
-3-
Lewis filed a complaint in the Jefferson Circuit Court alleging
discrimination and retaliation. Although she had legal counsel file the complaint
and propound discovery requests to Norton, counsel soon withdrew. Thereafter,
Lewis was pro se throughout most of the proceedings.1 After discovery was
completed, Norton submitted a motion for summary judgment. The circuit court
granted the motion and dismissed Lewis’s claims. This appeal followed.
Standard of Review
When a trial court grants a motion for summary judgment, the
standard of review for the appellate court is de novo because only legal issues are
involved. Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App.
2004).
Summary judgment is appropriate where “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.” Kentucky Rule
of Civil Procedure (CR) 56.03. The movant bears the initial burden of
demonstrating that there is no genuine issue of material fact in dispute. The party
1
A second attorney entered appearance for Lewis on February 27, 2020. Counsel appeared for a
status conference on March 9, 2020, but on June 17, 2020, Lewis filed a pro se motion stating
that she wished to represent herself. The parties appeared via telephone conference for Lewis’s
motion wherein she reiterated to the circuit court that she would be representing herself.
-4-
opposing the motion then has the burden to present, “at least some affirmative
evidence showing that there is a genuine issue of material fact for trial.” Steelvest,
Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). A party
responding to a properly supported summary judgment motion cannot merely rest
on the allegations in his pleadings. Continental Casualty Co. v. Belknap Hardware
& Manufacturing Co., 281 S.W.2d 914 (Ky. 1955). “[S]peculation and
supposition are insufficient to justify a submission of a case to the jury, and . . . the
question should be taken from the jury when the evidence is so unsatisfactory as to
require a resort to surmise and speculation.” O’Bryan v. Cave, 202 S.W.3d 585,
588 (Ky. 2006) (citing Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955
(Ky. 1951)).
On appeal, we must consider the evidence of record in the light most
favorable to the non-movant (i.e., Lewis) and must further consider whether the
trial court correctly determined that there were no genuine issues of material fact
and that the moving party was entitled to judgment as a matter of law. Scifres v.
Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
Analysis
We must first point out that there are several substantive deficiencies
in Lewis’s brief. First, in contravention of CR 76.12(4)(c)(v), she does not have a
preservation statement at the beginning of her argument, nor does she cite to the
-5-
record at any point. CR 76.12(4)(c)(iv) and (v), require ample references to the
record and citation to authority supporting each argument. It is not the
responsibility of this Court to search the record to find support for Lewis’s
arguments or where they are preserved, assuming such exists. Smith v. Smith, 235
S.W.3d 1 (Ky. App. 2006).
Second, Lewis’s appendix contains documents and evidence not
present in the record on appeal, nor considered by the circuit court in its order
granting summary judgment. This Court cannot consider evidence that the circuit
court had no opportunity to examine. Kindred Nursing Ctrs. Ltd. P’ship v. Leffew,
398 S.W.3d 463, 468 n.5 (Ky. App. 2013). Further, CR 76.12(4)(c)(vii) provides
that any evidentiary material or documents not part of the record on appeal shall
not be included in the appendix to a party’s brief. CR 76.12(4)(d)(v) requires
appellees to identify in their appendix index where the attached documents can be
found in the record on appeal.2
2
Lewis includes “Plaintiff’s Response to Defendant’s Summary Judgment” in her appendix. It
appears to have been filed stamped by the Jefferson Circuit Court on February 12, 2020, but is
not part of the record on appeal. In its reply filed in the circuit court on March 2, 2020, Norton
notes that in her response, Lewis “attached two reports (one from 2006 and one from 2017) that
provide conflicting information about her alleged learning and emotional disabilities.” However,
because neither Lewis’s response nor the attachments referenced by Norton appear in the record
before us, it is unclear if the circuit court considered either in its order granting summary
judgment. We note that the circuit court’s order begins by stating that Lewis “has filed a cursory
statement as a response[,]” to Norton’s motion for summary judgment. This could possibly
reference one of Lewis’s numerous pro se motions contained in the record, although this Court
has no way of knowing. In the appendix to her brief to this Court, Lewis also includes a report
from 2006, apparently completed for the purpose of disability determination. This report also
does not appear in the record before us, and it is again unclear if it is the same report referenced
-6-
Our options when an appellant fails to abide by the rules are: (1) to
ignore the deficiencies and proceed with the review; (2) to strike the brief or its
offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief
for manifest injustice only. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App.
2010). In this instance, we review for manifest injustice only and, accordingly,
find none.
Pursuant to KRS3 344.040(1)(a), in relevant part, it is illegal for any
employer
[t]o fail or refuse to hire, or to discharge any individual,
or otherwise to discriminate against an individual with
respect to compensation, terms, conditions, or privileges
of employment, because of the individual’s race, color,
religion, national origin, sex, age forty (40) and over,
because the person is a qualified individual with a
disability[.]
KRS 344.010(4) defines “disability” 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.
by Norton. “Matters not disclosed by the record cannot be considered on appeal.” Hatfield v.
Commonwealth, 250 S.W.3d 590, 600 (Ky. 2008) (internal quotation marks and citation
omitted).
3
Kentucky Revised Statute.
-7-
In establishing a discrimination case, a plaintiff must satisfy the
burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973). Here, Lewis bore the initial burden of establishing
a prima facie case of disability discrimination against Norton. To that end, Lewis
needed to establish that: (1) she has a disability as defined under the Kentucky
Civil Rights Act (i.e., KRS Chapter 344); (2) she was otherwise qualified to
perform the requirements of the job, with or without reasonable accommodation;
and (3) she suffered an adverse employment decision because of the disability.
Hallahan, 138 S.W.3d at 706-07 (citations omitted).
We agree with the circuit court that Lewis did not meet her burden of
proof because she did not establish she has a disability as defined under the
Kentucky Civil Rights Act. She did not respond to Norton’s request for medical
information from a physician about her disability and possible accommodations.
Instead, Lewis submitted only a letter claiming vague “mental and learning
disabilities.” This had not been disclosed to Norton prior to the incident in June
2017, and Lewis refused to provide any further information regarding her alleged
disability; hence, none appears in the record before us. Lewis cannot meet the
most basic element of a prima facie case of discrimination. Accordingly, no
further analysis of this claim is required.
-8-
Next, we also agree with the circuit court that Lewis failed to establish
a claim of retaliation. KRS 344.280(1) makes it unlawful for an employer
[t]o 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[.]
Lewis once again had the burden of establishing a prima facie case of
retaliation.
A prima facie case of retaliation requires a plaintiff to
demonstrate (1) that plaintiff engaged in an activity
protected by [the Kentucky Civil Rights Act]; (2) that the
exercise of his civil rights was known by the defendant;
(3) that, thereafter, the defendant took an employment
action adverse to the plaintiff; and (4) that there was a
causal connection between the protected activity and the
adverse employment action.
Brooks v. Lexington-Fayette Urban Cty. Housing Authority, 132 S.W.3d 790, 803
(Ky. 2004) (internal quotation marks and citation omitted). The circuit court held
that because Lewis failed to establish she has a disability, she could not therefore
establish she was retaliated against because of it. We agree, but also add that
Lewis failed to identify which protected activity she was engaged in pursuant to
KRS 344.280(1) when the alleged retaliation occurred. The record before us
-9-
reveals only that she made vague accusations of discrimination to Norton prior to
her termination.4
Accordingly, we discern no manifest injustice. The judgment and
order of the Jefferson Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Paulisa Lewis, pro se Donna King Perry
Louisville, Kentucky Matthew Barszcz
Aaron Vance
Louisville, Kentucky
4
In the recording of the meeting between Lewis and management after the June incident, Lewis
states that she felt she was being discriminated against, but stated she was not accusing Norton of
discriminating against her.
-10-