RONALD G. SEBREE v. KENTUCKY STATE POLICE, COMMONWEALTH OF KENTUCKY and JOSEPH R. ROWE
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RENDERED: MAY 13, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000273-MR
RONALD G. SEBREE
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
CIVIL ACTION NO. 99-CI-00625
v.
KENTUCKY STATE POLICE, COMMONWEALTH
OF KENTUCKY and JOSEPH R. ROWE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND TACKETT, JUDGES; HUDDLESTON, SENIOR JUDGE.1
HUDDLESTON, SENIOR JUDGE:
In June 1999, Ronald G. Sebree2 filed
suit in Franklin Circuit Court against his former employer, the
Kentucky State Police (KSP), and against retired State Trooper
Joseph
1
R.
Rowe,
one
of
Sebree’s
former
supervisors.
Sebree
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2
In the Franklin Circuit Court’s order and opinion, which this Court adopts,
Sebree was referred to as “Plaintiff”.
alleged that he suffered from a disability - depression, and
that,
due
rights
to
his
pursuant
pursuant
to
disability,
to
the
42
the
United
Kentucky
KSP
States
Civil
Rights
and
Rowe
Code
violated
(U.S.C.)
Act,
Kentucky
§
his
1983;
Revised
Statutes (KRS) Chapter 344; and pursuant to the Family Medical
Leave Act, 29 U.S.C. § 2601.
circuit
court
dismissed
By agreement of the parties, the
Sebree’s
42
U.S.C.
§
1983
claim.
Subsequently, both the KSP and Rowe filed motions for summary
judgment.
After the parties both briefed and argued the issues,
the court granted summary judgment in the defendants’ favor,
prompting Sebree’s appeal to this Court.
On appeal, Sebree argues that the circuit court failed
to view the evidence in the light most favorable to him as
required by Steelvest, Inc. v. Scansteel Service Center, Inc.3
He
insists
additional
that
unpaid
his
sick
request
leave
for
an
amounted
indefinite
to
a
amount
request
of
for
a
reasonable accommodation under the Kentucky Civil Rights Act.4
He contends that the KSP failed to present evidence regarding
undue
hardship.
And,
he
insists
that
he
adduced
sufficient
evidence that Rowe conspired with the KSP to retaliate against
him because he suffered from a disability, i.e., depression.
3
807 S.W.2d 476 (Ky. 1991).
For the first time on appeal, Sebree asserts that he did not request an
indefinite leave but only an additional thirteen weeks of unpaid sick leave.
And he asserts for the first time that he informed the State Police that, if
granted this additional thirteen weeks of leave, he would have been able to
return to work. Sebree’s assertions are not supported by the record.
4
-2-
On appeal, Sebree advances the same arguments that he
presented
to
Franklin
Circuit
Court.
In
response,
we
adopt
relevant portions of the circuit court’s opinion and order5 which
correctly analyzes and appropriately resolves Sebree’s claims.
INTRODUCTION
Plaintiff began employment with the KSP on December
16,
1985[,]
as
a
Security Section.
1990.
Security
Officer
in
the
Facilities
He was promoted to Sergeant on April 16,
On June 1, 1994[,] he was promoted to Lieutenant.
Shortly
thereafter,
this
gradual
progression
reverse direction for several reasons.
began
to
First, Plaintiff
became the focus of an internal investigation as a result
of his alleged association with the Sons of Confederate
Veterans
(“SCV”)
and
Plaintiff
failed
officers,
Officer
Ku
to
report
Reuben
influence of alcohol.
Officer
Bill
Wise
Klux
Klan
the
(“KKK”).
Walker,
arrest
for
of
Second,
one
driving
of
his
under
the
Third, Plaintiff, Officer Walker and
were
involved
in
an
incident
Downtowner Bar in Frankfort on January 23, 1995.
at
the
Walker
and Wise called in sick for their shift while Plaintiff
asked
a
midnight.
subordinate
The
to
three
cover
men
5
his
spent
shift
several
which
hours
began
drinking
We do not include the trial court’s analysis of Sebree’s Family Medical
Leave Act claim since he does not raise that issue on appeal.
-3-
at
alcohol.
Officer Wise accused one of the female patrons of
taking his car keys.
He followed her out of the bar and
demanded that she return his keys.
pockets
in
an
effort
to
He reached inside her
find
his
keys.
Plaintiff
identified himself as a Kentucky State Police officer and
attempted to mediate the dispute.
The female civilian made
a complaint to KSP concerning the incident.
Ultimately,
the
Justice
Law
Cabinet
chose
Enforcement
not
to
Plaintiff’s
Special
commission.
The SLEO commission authorizes an officer to
carry a gun and make arrests.
1996,
Plaintiff
was
Officer
renew
(“SLEO”)
As a result, on March 29,
reclassified
to
Facilities
Security
Officer I, which does not require a SLEO commission.
On January 23, 1996, Plaintiff reported to Rowe that
he
had
back
pain
and
was
going
to
take
sick
leave.
Plaintiff assured Rowe that he was not injured while on
duty.
On
Plaintiff’s
April
17,
1996,
psychiatrist,
Dr.
KSP
received
Getulio
V.
a
note
Tovar,
from
stating
that Plaintiff could not return to work until May 22, 1996.
In fact, he never returned to work.
paid
sick
time
on
February
6,
Plaintiff ran out of
1997.
Following
the
application of donated sick time, Plaintiff was placed on
Sick Leave Without Pay effective June 4, 1997.
On May 19,
1998, KSP delivered a letter to Plaintiff informing him
-4-
that he was expected to report to work on June 4, 1998, or
KSP would consider him as resigned.
Two days later, Dr.
Tovar informed KSP that Plaintiff was under his treatment
for Affective Disorder with no anticipated date of return
to work.
Plaintiff did not report to work on June 4, 1998,
and
resignation
his
2:100(7)(e)
which
was
processed
states
that
pursuant
“[A]n
to
employee
101
KAR
shall
be
considered to have resigned if he or she has been on one
(1) year continuous sick leave without pay ….”
One year
later, on June 4, 1999, Plaintiff commenced this action
against KSP and Rowe.
DISCUSSION
The
familiar,
from
this
standard
for
Summary
well-settled,
Court.[6]
and
In
Judgment
does
this
not
case,
in
require
Summary
Kentucky
is
elaboration
Judgment
is
appropriate for the reasons set forth below.
KRS Chapter 344 Claim Against KSP
Plaintiff
Rights
Act,
claims
KRS
KSP
344.040[,]
violated
for
the
Kentucky
allegedly
discriminating
against him due to his claimed disability.
provides
that
it
is
unlawful
6
“for
an
Civil
KRS 344.040
employer
to
See Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.
1991); CR 56.
-5-
…
discharge
any
individual
…
because
the
person
is
a
qualified individual with a disability ….”
First,
Plaintiff
argues
KSP
failed
to
“reasonably
accommodate” him and subjected him to disparate treatment
in violation of KRS Chapter 344.
The relevant portion of
the Kentucky Civil Rights Act (“Act”) is closely modeled
after the Americans with Disabilities Act.[7]
Thus, it is
appropriate to analyze claims under the Act by reference to
its federal counterpart.[8]
in
support
under
of
Monette
offering
the
v.
indirect
traditional
Green.[10]
test
A case offering direct evidence
plaintiff’s
Electronic
evidence
stated
claim
Data
should
Systems
requires
in
be
analyzed
Corp.[9]
application
McDonnell-Douglas
of
One
the
Corp.
v.
Nonetheless, under both tests, the burden rests
on the Plaintiff to establish he is a “qualified individual
with
a
disability.”[11]
A
“qualified
individual
with
a
disability” is defined as follows:
An individual with a disability … who, with or without
reasonable
accommodation,
functions
of
individual
the
holds
can
employment
or
7
desires
perform
the
position
unless
an
essential
that
employer
42 U.S.C. § 12101, et seq.
Brohm v. JH Properties, Inc., 149 F.3d 517 (6th Cir. 1998).
9
90 F.3d 1173 (6th Cir. 1996).
10
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
11
Walsh v. United Parcel Service, 201 F.3d 718, 724-25 (6th Cir. 2000);
Monette, supra, note 9, at 1186.
8
-6-
the
demonstrates
that
accommodate
an
he
is
employee’s
unable
or
to
reasonably
prospective
employee’s
disability without undue hardship on the conduct of
the employer’s business.[12]
In
the
case
extension
at
of
hand,
his
Plaintiff
leave
of
requested
an
absence.
indefinite
Courts
have
consistently held that indefinite leave is not a reasonable
The Walsh Court recently noted that its
accommodation.
review of case law had disclosed no cases where an employer
was
required
to
allow
an
employee
to
take
a
leave
of
absence for well in excess of one (1) year as a reasonable
accommodation.[13]
Here, Plaintiff has been on either unpaid
or unpaid leave for over two (2) years.
Furthermore, he
was unable to offer an estimated date of return to work.
request
prospects
for
additional
for
a
leave
return
to
when
there
work
is
unreasonable accommodation.”[14]
are
an
no
A
clear
“objectively
Thus, KSP is entitled to
judgment as a matter of law.
KRS Chapter 344 Claim Against Rowe
Plaintiff argues that Rowe violated KRS 344.280(2) in
that
12
13
14
he
conspired
with
KSP
KRS 344.040.
Walsh, supra, note 11, at 727.
Id., note 11.
-7-
and
others
to
commit
acts
declared
unlawful
by
the
Kentucky
Civil
Rights
Act.
Specifically, the statute makes it “unlawful for a person,
or for two (2) or more persons to conspire: … (2) to aid,
abet, incite, compel, or coerce a person to engage in any
of the acts or practices declared unlawful by this chapter
….”
Plaintiff insists that Rowe conspired to discriminate
against
Plaintiff
based
upon
his
alleged
disability.
However, it is undisputed that Plaintiff was not diagnosed
with a depressive condition until after his final day of
work with KSP.[15]
Thus, Rowe could not have discriminated
against Plaintiff, base upon this alleged disability, prior
to the beginning of Plaintiff’s leave from work.
The
occurred
also
fail
remaining
after
to
issues
Plaintiff
sustain
a
raised
was
by
diagnosed
claim
for
Plaintiff,
with
which
depression,
discrimination.
The
overwhelming evidence in the record establishes that the
SLEO commission was denied for reasons entirely unrelated
to
Plaintiff’s
disability.
Moreover,
that
decision
was
made after a thorough examination by the Justice Cabinet,
not
Rowe.
Finally,
any
decisions
regarding
Plaintiff’s
sick leave were made by his new supervisor, Captain Tim
Hazlette.
Furthermore, Plaintiff has not been able to cite
any evidence that KSP treated him unfairly with respect to
15
See Second Deposition of Plaintiff, pp. 63-64.
-8-
his leave from work.
Plaintiff received over 16 months of
paid sick leave, then another full year of unpaid leave.
Considering the evidence in the light most favorable to
Plaintiff,
it
is
impossible
for
Plaintiff
to
produce
evidence at trial warranting a judgment in his favor and
against the movant.
Despite
Sebree’s
insistence
to
the
contrary,
the
circuit court did, in fact, view the evidence in the light most
favorable to him, and it correctly concluded that no genuine
issues of material facts exist.
Consequently, the judgment is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Ruby D. Fenton-Iler
Borowitz & Goldsmith, PLC
Louisville, Kentucky
BRIEF FOR APPELLEE, JOSEPH R.
ROWE:
Stewart C. Burch
Logan & GAINES, PLLC
Frankfort, Kentucky
NO BRIEF FOR APPELLEE,
KENTUCKY STATE POLICE
-9-
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