3:21-cv-00192
W.D. Ky.Mar 31, 2023Background
- Jerry Perry, a registered nurse since 1988, was immunocompromised and on immunosuppressant medication; in July 2020 she requested to wear an N95 mask at work due to COVID-19 risk.
- Norton placed Perry on leave while evaluating her request; she submitted physician-completed accommodation forms from Dr. Jeffrey Callen and Dr. Jun Oh Kim.
- Norton offered surgical masks plus eye protection and an alternative assignment at its COVID-19 Command Center, refusing to provide an N95 and declining to allow Perry to bring a personal N95 (citing inability to verify effectiveness).
- Callen described N95 use as “preferable” but agreed Norton’s response was reasonable; Kim recommended permitting Perry to supply and wear her own N95.
- Perry retired (stating she felt forced to do so) on August 7, 2020 and sued in March 2021 alleging disability discrimination under the ADA and KCRA.
- The court denied Norton’s motion for summary judgment, finding material factual disputes on disability status, the interactive process and reasonableness of accommodations, undue hardship, adverse employment action/constructive discharge, and disparate treatment comparators.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perry is disabled under ADA/KCRA | Perry’s immunosuppressed state substantially limits major life activities (immune function, working) during COVID-19 | Norton contends impairment did not substantially limit major activities or job performance | Question of fact for jury; summary judgment denied |
| Whether Norton engaged in the interactive accommodation process in good faith / whether proposed accommodations were reasonable | Norton failed to engage in good faith, refused Perry’s requested accommodation (personal N95) and offered inadequate alternatives | Norton evaluated doctors’ input, proposed surgical mask + eye protection, and offered Command Center reassignment | Genuine disputes about good faith and reasonableness preclude summary judgment |
| Whether allowing Perry to bring and wear her own N95 would impose an undue hardship on Norton | Permitting personal N95s would not trigger statutory undue-hardship factors and CDC allowed voluntary use | Norton says permitting personal N95s undermined supply/authentication and posed operational hardships during shortages | Whether permitting a personal N95 was an undue hardship is a jury question; summary judgment denied |
| Whether Perry suffered an adverse employment action / constructive discharge | Perry was effectively forced to retire because proposed accommodations were insufficient and she faced intolerable risk | Norton contends Perry voluntarily retired after physician suggestion and was offered reassignment and protections | Material factual disputes on intolerable conditions and intent of employer; summary judgment denied |
| Whether similarly situated employees were treated more favorably | Perry presents declarations claiming peers wore personal N95s and were treated differently | Norton disputes timeliness/disclosure of these witnesses and challenges comparators | Court found factual disputes about comparators and disclosure; summary judgment denied |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden-allocation principles)
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard; need more than scintilla)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (nonmoving party must show more than metaphysical doubt)
- Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862 (6th Cir. 2007) (failure-to-accommodate/direct-evidence framework)
- Hedrick v. W. Resrv. Care Sys., 355 F.3d 444 (6th Cir. 2004) (reasonable accommodation and qualified-individual principles)
- Lafata v. Church of Christ Home for Aged, [citation="325 F. App'x 416"] (6th Cir. 2009) (interactive accommodation process is mandatory)
- Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241 (6th Cir. 1995) (elements for disparate treatment under disability law)
- Logan v. Denny's, Inc., 259 F.3d 558 (6th Cir. 2001) (constructive discharge factors)
- E.E.O.C. v. SunDance Rehab. Corp., 466 F.3d 490 (6th Cir.) (definition/examples of materially adverse employment actions)