In February of 2013, the United States District Court for the Eastern District of Kentucky presided over a case where the court had a motion to dismiss and motion to amend in front of it. the court after hearing all of the evidence denied both motions in this Kentucky disability discrimination case. (See Beair v. Summit Polymers, 2013 WL 645457 (E.D. KY 2013)).
Accordingly, the court upheld the lower court’s ruling stating that the burden is on the plaintiff to demonstrate that a company-wide age bias permeates each individual termination such as plaintiff’s. Plaintiff failed to do so.
Plaintiff in her motion to amend sought to add a retaliation claim under the Kentucky Civil Rights Act. The plaintiff had worked for the defendant as a production worker from 1999 to March 15, 2010 when she was fired. Id. Plaintiff claimed she suffered from anxiety and depression and had requested that the defendant accommodate her and assign her a different production line or shift. She filed a Kentucky disability discrimination lawsuit alleging ADA violations that the defendant did not reasonably accommodate her disability and that they retaliated against her by firing her because she requested the reasonable accommodation. Id.
“Prior to filing an action under the ADA, the plaintiff must exhaust her administrative remedies by filing an EEOC charge within 180 days of the alleged discrimination or with the state agency within 300 days.” (cites omitted). The purpose of having to file with the EEOC is to give the EEOC the opportunity to investigate and attempt to obtain voluntary compliance. Id. Also, it gives the defendant employer notices of the nature of the plaintiff’s claims and gives them an opportunity to settle the claims before the EEOC rather than litigate them. Id.
On the EEOC form the plaintiff only checked the box labeled “disability,” she did not check the box labeled “retaliation.” Id. This does not necessarily mean that the plaintiff failed to exhaust her retaliation claim. Id. The court had to look at whether the retaliation claim was ‘actually’ investigated. The Kentucky disability discrimination lawyer for the plaintiff showed that the EEOC did in fact investigate this issue.
The plaintiff’s Charge explained that she requested a reasonable accommodation for her disability and was subject to hostile work environment. The defendant claims that she was fired for violating the defendant’s sexual harassment policy. The EEOC found that the defendant failed to provide reasonable accommodations but that the EEOC did not find “cause “ on the termination claim. Id. The EEOC investigator did look at a possible retaliatory claim. Accordingly, the court denied defendant’s motion to dismiss.
As to plaintiff’s motion to amend, the Scheduling Order established April 18, 2012 a the deadline for filing motions to amend pleadings. The plaintiff did not do so until nearly six months after the deadline. There was no reason why the Kentucky plaintiff could not have filed her state law claim for retaliation prior to the deadline for amending the pleadings. She still had their ADA retaliation claim. So the court denied plaintiff’s motion to amend.
If you have been the subject of a Kentucky disability discrimination case, please call and speak to a Kentucky disability discrimination lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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