Siobhan Diamond v. Baptist Healthcare System Inc. ( 2023 )

RENDERED: APRIL 14, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0134-MR
SIOBHAN DIAMOND APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE W.A. KITCHEN, JUDGE
ACTION NO. 19-CI-00136
BAPTIST HEALTHCARE SYSTEM,
INC. APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND EASTON, JUDGES.
DIXON, JUDGE: Siobhan Diamond appeals from the opinion and order granting
summary judgment in favor of Baptist Healthcare System, Inc. (BHS), entered by
the McCracken Circuit Court on January 4, 2022. Following a careful review of
the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
In 2015, BHS hired Diamond as a registered surgical nurse. In May
2018, Diamond was diagnosed with breast cancer and underwent a double
mastectomy. She returned to work with no restrictions on July 2, 2018.
Although Diamond was still able to perform her work, she wore
compression sleeves to minimize swelling in her arms and hands. Even so, one of
her hands experienced noticeable swelling. Some BHS employees referred to
Diamond’s swollen hand as a “monster hand.” This comment, combined with two
others, upset Diamond, and another nurse reported the statements to a supervisor.
The supervisor met with Diamond and other supervisors to discuss these incidents,
and no further offensive comments were made.
On July 13, 2018, at shift change, Diamond relieved a nurse during a
biopsy surgery. The purpose of the surgery was to collect a specimen for testing to
determine the best path of treatment for the patient. The off-going nurse charted
that the specimen had been removed but failed to verify her entries. Diamond
made no inquiries regarding the whereabouts of the specimen but verified the chart
to close it out. Unfortunately, no specimen was sent to the laboratory.
The surgeon called the lab a few days later to obtain the results and
was informed the specimen was not received, which required the patient to
undergo another procedure. Both Diamond and the nurse she relieved were
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suspended pending an investigation. When questioned, Diamond could not recall
the procedure. It was ultimately determined by BHS supervisors that Diamond
violated its policies by falsifying the patient’s chart and acting recklessly, which
led to her termination on July 27, 2018.
On February 14, 2019, Diamond sued BHS alleging: (1) disability
discrimination, (2) retaliation, (3) hostile work environment, and (4) negligent
infliction of emotional distress (NIED). Substantial discovery occurred, including
multiple depositions. BHS eventually moved for summary judgment, which the
trial court granted, and this appeal followed.
STANDARD OF REVIEW
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.” CR1 56.03.
“[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 trial warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel
Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991).
1
Kentucky Rules of Civil Procedure.
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An appellate court’s role in reviewing an award of summary judgment
is to determine whether the trial court erred in finding no genuine issue of material
fact exists, and the moving party was entitled to judgment as a matter of law.
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). A grant of summary
judgment is reviewed de novo because factual findings are not at issue. Pinkston v.
Audubon Area Cmty. Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing
Blevins v. Moran, 12 S.W.3d 698 (Ky. App. 2000)).
Here, because the trial court granted summary judgment to BHS, we
review the facts in a light most favorable to Diamond and resolve all doubts in her
favor. Applying the Steelvest standard, we agree with the trial court that there was
no genuine issue of material fact and that Diamond did not, and indeed could not
under the circumstances herein, carry her burden. Therefore, we conclude that
summary judgment was properly granted to BHS.
LEGAL ANALYSIS
Diamond alleges that the behavior of BHS violated the Kentucky
Civil Rights Act (KCRA).2 KRS 344.040 prohibits discrimination “against an
2
Kentucky Revised Statutes (KRS) 344.010 et seq.
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individual with respect to compensation, terms, conditions, or privileges of
employment, . . . because the person is a qualified individual with a disability[.]”3
KRS 344.010(4) specifically provides:
“Disability” means, with respect to an individual:
(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.
Persons with current or past controlled substances abuse
or alcohol abuse problems and persons excluded from
coverage by the Americans with Disabilities Act of 1990
(P.L. 101--336) shall be excluded from this section.
(Footnote omitted.) See also 42 U.S.C.4 § 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 v. The Courier-Journal,
138 S.W.3d 699, 707 (Ky. App. 2004) (citations omitted). “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
3
Kentucky courts have “consistently interpreted the civil rights provisions of KRS Chapter 344
consistent with the applicable federal anti-discrimination laws.” Williams v. Wal-Mart Stores,
Inc., 184 S.W.3d 492, 495 (Ky. 2005). The Supreme Court of Kentucky held KRS 344.040
“should be interpreted consonant with federal interpretation” in Meyers v. Chapman Printing
Company, Inc., 840 S.W.2d 814, 821 (Ky. 1992).
4
United States Code.
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judgment under the appropriate circumstances.” Id. (emphasis added).
Diamond only includes the first half of this quote in her brief; however, the second
half cannot be ignored, especially since it is applicable to the case herein. “Major
life activities include, among other things, walking, seeing, hearing, performing
manual tasks, caring for oneself, speaking, breathing, learning, and working.”
Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003) (footnotes omitted).
Despite the fact this list is not all-inclusive, Diamond failed to allege any
impairment to any of these or similar activities. Most notably, she was released to
work with no restrictions and admits her impairment did not affect her ability to do
so. While we dare not diminish the impact of breast cancer upon Diamond, we
recognize the impairments she experienced did not amount to those substantially
limiting her ongoing major life activities. Further, Diamond presented no proof
she had a record of impairment or that the BHS supervisors who terminated her
employment regarded her as disabled. In fact, some of the supervisors making this
decision testified they were unaware Diamond had cancer until after she was fired.
Therefore, there is no genuine dispute of material fact that Diamond was not
disabled.
The Supreme Court of Kentucky has identified two avenues to
establish an employment discrimination case. Williams, 184 S.W.3d at 495. The
first path is to produce direct evidence of discriminatory animus. The second path
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is to satisfy the burden-shifting test of McDonnell Douglas Corporation v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Diamond has not
successfully navigated either path.
“Direct evidence of an unlawful employment practice is evidence that
directly reflects the alleged animus and that bears squarely on the contested
employment decision.” Hallahan, 138 S.W.3d at 710. “However, direct evidence
does not include stray remarks in the workplace, statements by decision-makers
unrelated to the decisional process itself, or statements by nondecision-makers.”
Id.Diamond alleges a few statements made by a handful of BHS
employees constitute such direct evidence. The first statements made by “several”
BHS employees – only two of which she could recall specifically, and as
previously addressed herein – referred to Diamond’s swollen hand as a “monster
hand.” The second statement, by a doctor, was for Diamond to “hold your tits.”
She also claims one nurse asked about her compression sleeves and another one
told her how lucky she was not to have to wear a bra. We agree with the trial court
that these isolated statements are insufficient to evince any discrimination practices
in the workplace. While these actions may indeed be offensive, pursuant to
Hallahan, they merely constitute “stray remarks” and actions by nondecision-
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makers. Therefore, they are insufficient to constitute direct evidence of
discriminatory animus.
Under the McDonnell Douglas framework, a plaintiff can establish a
prima facie case of gender discrimination by proving that he or she: “(1) was a
member of a protected class, (2) was discharged, (3) was qualified for the position
from which they were discharged, and (4) was replaced by a person outside the
protected class.” Williams, 184 S.W.3d at 496. In the case herein, there is no
dispute that the second or third elements were met, and there appears to be no
evidence concerning the fourth element; nevertheless, the parties herein dispute the
first element. Failure to prove any one of these elements is fatal to establishing a
prima facie case of discrimination based on a disability. As previously discussed,
Diamond has not proven she was a member of a protected class and, therefore, her
claims fail as a matter of law. Accordingly, the trial court properly granted
summary judgment on this claim.
We now turn to the dismissal of Diamond’s retaliation claims. There
are four elements of a retaliation claim: “a plaintiff must produce evidence that (1)
she engaged in protected activity (2) that was known to the defendant (3) who
thereafter took an employment action adverse to the plaintiff, (4) which was
causally connected to the plaintiffs [sic] protected activity.” Asbury Univ. v.
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Powell, 486 S.W.3d 246, 258 (Ky. 2016). Taking the facts as presented, Diamond
is unable to prove her retaliation claims.
Whether Diamond “engaged in protected activity” is the first element
of a prima facie action of impermissible retaliation. Brooks v. Lexington Fayette
Urban Cnty. Housing Auth., 132 S.W.3d 790, 803 (Ky. 2004). Without properly
alleging this element, from which the others flow, Diamond has no claim under the
KCRA. “Protected activity” is defined by KRS 344.280:
[i]t shall be an unlawful practice for a person, or for two
(2) or more persons to conspire:
(1) [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[.]
KRS 344.280(1) consists of two clauses, commonly referred to as the
“opposition clause” and “participation clause.” The first clause concerns
opposition to perceived violations of the KCRA, which is inapplicable to the case
at hand; the second deals with active participation in a charge, complaint, or
investigation of any proceeding under the KCRA. Diamond’s allegations attempt
to state a cause of action under the participation clause for an informal verbal
complaint to a supervisor. However, it is undisputed that no formal investigation,
proceeding, or hearing under the KCRA was ever undertaken.
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The participation clause “protects proceedings and activities which
occur in conjunction with or after the filing of a formal charge with the [Equal
Employment Opportunity Commission (EEOC)]; it does not include participating
in an employer’s internal, in-house investigation, conducted apart from a formal
charge with the EEOC.” E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174
(11th Cir. 2000) (footnotes and citations omitted).5 “[I]nstigation of proceedings
leading to the filing of a complaint or a charge, including a visit to a government
agency to inquire about filing a charge, is a prerequisite to protection under the
participation clause.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d
1304, 1313 (6th Cir. 1989) (internal quotation marks and citation omitted). In
Kentucky, the KCHR must be involved – even if only through an inquiry about
filing a charge – to invoke statutory protection under the participation clause.
Any “charge” or “complaint” in which Diamond alleges she
participated was, at most, internal in nature as the actions were confined within
BHS. No action was made or contemplated involving the KCHR. This failure is
fatal to Diamond’s claims under the KCRA.
Although Diamond also alleged she was subjected to a hostile work
environment in violation of the KCRA, she failed to present any argument
5
The Kentucky Commission on Human Rights (KCHR) is Kentucky’s counterpart to the federal
EEOC. The KCHR is established and enabled by KRS 344.010 et seq., specifically KRS
344.015 and KRS 344.150.
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regarding the dismissal of this claim in her brief. We will not search the record to
construct Diamond’s argument for her, nor will we go on a fishing expedition to
find support for her underdeveloped arguments. See Prescott v. Commonwealth,
572 S.W.3d 913, 923 (Ky. App. 2019). “Even when briefs have been filed, a
reviewing court will generally confine itself to errors pointed out in the briefs and
will not search the record for errors.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky.
App. 1979).
Diamond does not challenge the dismissal of her NIED claim.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the McCracken
Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
John S. Friend Donna King Perry
Louisville, Kentucky Jeremy S. Rogers
Alina Klimkina
Louisville, Kentucky
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