In December of 2012 the United States Court of Appeals heard a case involving the ADA, FMLA and the KCRA. (See Laws v. HealthSouth Northern Kentucky Rehabilitation Hospital Limited Partnership, 2012 WL 6176797 (6th Cir.)). In this case, the Plaintiff was a licensed practical nurse who was employed by the defendant from 1998 until October of 2008 when she was terminated. Id. The plaintiff was counseled in 2003 and 2004 for poor attendance. Id. In 2005 plaintiff suffered an aneurism in her left eye and had to miss time from work. Id. In 2006 Plaintiff took intermittent FMLA leave. Id. And in 2007 she took more intermittent FMLA leave. Finally in 2008 Plaintiff was given a verbal warning for missing so much time from work. And then in 2008 plaintiff wrote on a patient’s chart in the wrong spot something that was important. This was a clear error on her part. Shortly thereafter plaintiff was fired.
Plaintiff then filed her Kentucky ADA, FMLA and KCRA lawsuit. The district trial court issued a 70 page ruling dismissing all her claims. This is the appeal that followed. She hired a Kentucky ADA, FMLA and KCRA lawyer to handle her case.
Plaintiff claims that she offered direct evidence as to her FMLA claim. The court did not agree. Plaintiff did not put forth any direct evidence anywhere showing that the defendant expressed a desire to terminate her because she had used her FMLA leave. Id. Next, the court looked to see if plaintiff had proven her FMLA case using circumstantial evidence. The court presumed that she did but then also presumed that the defendant had offered a legitimate, nonretaliatory reason for terminating her. Thus, the burden was back on the plaintiff to show that the reason defendant gave was pretextual. The Court found that the evidence Plaintiff’s Kentucky ADA, FMLA and KCRA lawyer had given did create a genuine dispute of fact as to whether the proffered reason was pretextual. (cites omitted). Thus, Plaintiff’s claim for FMLA retaliation was allowed to continue.
Next, the court reviewed the age discrimination count that plaintiff brought. This count was dismissed. Plaintiff did not present evidence that she was replaced by a younger employee or disciplined more harshly than similarly situated younger employees. To establish a prima facie case for age discrimination plaintiff must show 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 replace by a person outside the protected class or treated differently than similarly situated individuals.” (cites omitted).
Finally, as to plaintiff’s ADA claim, the court supported the lower court’s ruling that plaintiff had not established such a claim. To establish a prima facie case of disability discrimination, plaintiff must she 1, she is disabled, 2, she is otherwise qualified for the position, with or without reasonable accommodation, 3, she suffered an adverse employment action, 4, defendant knew or had reason to know of her disability, and 5, she was replaced. (cites omitted). In this case, the court did find that plaintiff did satisfy all elements for an ADA claim. But, the court stated that the defendant did offer a legitimate nondiscriminatory reason for her termination that the plaintiff could not rebut.
If you have been the subject of a Kentucky ADA, FMLA and KCRA case, please call and speak to a Kentucky ADA, FMLA and KCRA lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!