Commonwealth of Kentucky Court of Appeals

Transcription

1 RENDERED: JUNE 29, 2012; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR ELIZABETH YADON APPELLANT APPEAL FROM PULASKI CIRCUIT COURT v. HONORABLE JEFFREY T. BURDETTE, JUDGE ACTION NO. 07-CI TOYOTETSU AMERICA, INC. and PAUL CUNAGIN APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, MOORE, AND STUMBO, JUDGES. MOORE, JUDGE: Elizabeth Yadon appeals an order of the Pulaski Circuit Court granting summary judgment on her claims of disability discrimination and retaliation in favor of her former employer, Toyotetsu America, Inc. (TTAI), and

2 its general manager of human resources, Paul Cunagin. Finding no error, we affirm. FACTUAL AND PROCEDURAL HISTORY As stated in the circuit court s June 7, 2011 order, there is no genuine dispute with respect to the following facts: Elizabeth Yadon began working for TTAI in 1998 and was later transferred to the Quality Assurance department. In the Quality Assurance department, team members are responsible for inspecting parts on or near the production lines throughout the plant, and for testing, calibrating, and inspecting parts that are packaged for shipping. To inspect the parts, team members use check fixtures that are on wheeled carts. The inspected parts are lifted onto the check fixture by the team member. Because of the weight of the wheeled carts, team members are required to exert a minimum of 36 pounds of force.[ 1 ] Additionally, team members are required to perform cross cuts and X cuts on parts. Team members lift parts onto a cutting hood and dissect the products for inspection. Afterwards, the team members lift, carry and secure parts for destruction. Team members are also required to sort parts, which requires them to lift both parts and containers of parts. Also, team members perform certain rapid-response tests due to customer complaints. The tests are performed wherever the parts are currently located in the factory and if they are already packaged, the team members must climb and pull down the containers from stacks. Also, 1 Yadon asserts that prior to when her medical leave began in April, 2004, TTAI allowed some employees in the Quality Assurance department to use lightweight plastic carts, rather than the heavier wheeled carts mentioned above. However, even if this were true, it creates no genuine issue of material fact for purposes of summary judgment. Nothing in the record demonstrates that TTAI continued this practice after April, 2004; no objective evidence of record demonstrates that this alleged practice was safe or reasonable; and, nothing in the record reflects that Yadon ever requested the use of lightweight plastic carts as a reasonable accommodation for her alleged disability. -2-

3 team members use vices to hold various parts while moving the parts between shelves or from the floor to the shelf. The vice alone weighs 32 pounds. Team members are required to be able to rotate through all the Quality Assurance functions and perform all the Quality Assurance functions at all times.[ 2 ] In April of 2004, team member Elizabeth Yadon was diagnosed with breast cancer and was granted a medical leave of absence to receive treatment. She underwent chemotherapy from April 2004 to June 2004 and then had a radical mastectomy of her left breast. She received a second round of chemotherapy, followed by radiation in Fall, 2004, and at least one more round of radiation in Spring of Under TTAI s leave policy, Yadon was allowed to take 12 months to seek treatment. After 12 months, she was called in to meet with members of the [sic] TTAI s Human Resource Department to discuss whether she was able to return to her employment position. On March 7, 2005, Yadon met with Paul Cunagin where she tendered documentation stating she was limited to sedentary work only and that she was required to be in a sanitary working environment. She informed Mr. Cunagin that she could perform functions that were not affected by her restrictions. On April 7, 2005, Yadon submitted a certification to TTAI stating that she was released to return to work starting on April 11, 2005 with the restriction that she could not lift more than five (5) pounds with her left arm. Then, sometime between May and August of 2005, Yadon s doctor completed a Job Function Evaluation form stating that [Yadon] could not lift, push, or pull more than 10 pounds with her left arm. 2 In her deposition, Yadon testified that prior to her medical leave in April, 2004, the Quality Assurance position was still relatively new, TTAI was still in the process of defining the functions of that position, and that there were occasions when TTAI did not require Quality Assurance team members to perform all of the above-described duties. Nevertheless, Yadon herself acknowledged that when TTAI employed her as a Quality Assurance team member, TTAI required her to perform every duty relating to this position. -3-

4 TTAI began an evaluation to determine whether or not Yadon would be able to perform her Quality Assurance team member functions. They hired Jeff Parmalee, a physical therapist, to evaluate the requirements of Yadon s team member job and to assess whether there were any accommodations for Yadon s team member job and to assess whether there were any accommodations for Yadon s five pound restriction. Parmalee s report indicated that even the lightest activities by a Quality Assurance team member required lifting, pushing or pulling average weights above the five pound lifting restriction, and that such a lifting restriction prohibited a team member from performing the Quality Assurance job safely. He found that, other than hiring another individual to do all the heavy lifting, there were no accommodations that would allow someone with a five pound lifting restriction to perform the job. He also indicated that the job could not be safely performed without the use of both hands and an opposing grip.[ 3 ] Parmalee did indicate that even though there were few aspects of the team member position that could be performed under the five pound lifting restriction, mainly testing and calibration, all team members are required to perform all functions of the job, not simply performing testing and calibration. Yadon s lifting requirement was then increased to 10 pounds, yet Parmalee testified that the 10 pound restriction is still well under the amount of weight that a team member would need to lift, push and pull. Yadon 3 On appeal and for the first time, Yadon argues that TTAI could have reasonably accommodated her 10-pound lifting restriction by simply allowing her to lift items with her right hand and steady them with her left. Yadon s argument presents no genuine issue of material dispute, however, because she failed to raise this accommodation argument below, which precludes this Court from considering it now, see, e.g., Giddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d 729, (Ky. 2011). Alternatively, she supports this argument solely with her own subjective testimony, rather than with objective evidence demonstrating that her proposed accommodation would be reasonable, let alone safe. See Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1183 (6th Cir. 1996) (in the context of an ADA discrimination claim, the disabled individual bears the initial burden of proposing an accommodation and showing that that accommodation is objectively reasonable ); see also Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003) ( The Kentucky Civil Rights Act was modeled after federal law, and our courts have interpreted the Kentucky Act consistently therewith. (citation omitted)). -4-

5 herself, in her deposition, admitted that the Quality Assurance job required lifting parts weighing approximately 30 pounds. Yadon met with TTAI on August 9, She stated that she could only pick up and sort smaller parts and that she could only perform the rapid response audits if someone could get the containers down for her. Also, she stated that she could not risk being cut by metal because of the increased risk of infection caused by her treatment. [Yadon] proposed four potential accommodations: [1] creating a position where she only did testing and calibration; [2] have someone else perform her [lifting] functions; [3] being transferred to a clerical or office position; or [4] just performing the clerical duties of the Production Control job (which has a number of other functions, including part lifting). TTAI did consider Yadon for all vacant positions from the notice of the permanent restrictions in 2005 to [Yadon s] termination in [May 31,] However, TTAI state[d] that Yadon was not qualified for any of the positions, either because of her lifting restrictions or [because] she could not meet the technical or educational qualifications for the open positions. Yadon then proceeded to take two more years of leave to continue to seek treatment and therapy. During this time she continued to receive disability benefits from [TTAI s disability carrier, UNUM Provident]. To receive these benefits from UNUM, Yadon had to certify that she was limited from performing the material and substantial duties of [her] regular occupation due to [her] sickness or injury. According to testimony from Kelly M. Stone, UNUM would not provide benefits if there was a way for the claimant to do the job and have it accommodated. To receive her benefits, Yadon was required to demonstrate to UNUM that she was limited in performing the duties she actually had to perform for the job. She provided a number of verbal and written assurances that she could not, in fact, perform her duties, including evidence that her doctor told her she could not work in large crowds or around metal, she had limited motion in her arms and -5-

6 could not lift more than 10 pounds, she was limited to sedentary work and indicated it was a lifetime condition. Additionally, a month after her termination, Yadon certified that she was not able to return to work.[ 4 ] (Citations to specific exhibits of record omitted.) On August 3, 2007, Yadon filed suit against TTAI and its general manager of human resources, Paul Cunigan, asserting the following claims: 1) 4 Below, Yadon made no direct attempt to rebut TTAI s contention that her acceptance of disability benefits from UNUM qualified as an evidentiary admission that her lifting restriction could not be reasonably accommodated by TTAI; Yadon merely stated that her entitlement to disability benefits was in accordance with UNUM s policy and assessments. On appeal, Yadon now directly argues that her acceptance of disability benefits does not constitute any kind of relevant evidence. In that regard, we disagree. In Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376 (6th Cir. 1998), it was generally recognized that while statements contained in a claimant s application for disability benefits through either Social Security or private insurers are not dispositive of any issue relating to the ADA, they are considered to be rebuttable evidence: The point here is a simple one: When employees (and/or their physicians) represent that they are totally disabled, wholly unable to work, or some other variant to the same effect, employers and factfinders are entitled to take them at their word; and, such representations are relevant evidence of the extent of a plaintiff's disability, upon which an employer may rely in attempting to establish that an ADA plaintiff is not a qualified individual with a disability. At the same time, because the SSA's [Social Security Administration s] definition of disability-as well as those of most disability insurance plans-differs materially from the ADA's definition of a qualified individual with a disability, these representations are not conclusive as to the ADA issue. When a defendant in an ADA action relies on such representations as the basis for contending that a plaintiff is not a qualified individual, the plaintiff is free to come forward with additional evidence that shows she could perform the essential duties of a desired position with or without reasonable accommodation notwithstanding the fact that she might have been deemed disabled under some other statutory or contractual framework.... As a general matter... absent some such affirmative showing... the employer will be entitled to judgment as a matter of law. Id. at 383 (citing Weigel v. Target Stores, 122 F.3d 461, (7th Cir. 1997) (footnote omitted)). Here, in response to Yadon s initial application for disability benefits, and prior to making any disability payments to Yadon, UNUM informed Yadon in an April 23, 2004 letter that it would only make disability payments upon its determination that Yadon was disabled according to the definition of that word in UNUM s policy with TTAI. UNUM further explained that it would categorize Yadon as disabled only if it determined, according to the evidence produced by Yadon, that Yadon was limited from performing the material and substantial duties of [her] regular occupation due to [her] sickness or injury[.] UNUM s policy with TTAI further -6-

7 disability discrimination pursuant to KRS against TTAI; 2) retaliation pursuant to KRS against TTAI and Paul Cunagin; 3) negligent retention against TTAI; 4) intentional infliction of emotional distress against both TTAI and Cunagin; and 5) an alleged violation of KRS , which it asserted against both TTAI and Cunigan. The circuit court summarily dismissed each of these claims on June 7, On appeal, Yadon s arguments regard only her claims of disability discrimination and retaliation; thus, Yadon has waived review of the circuit court s summary judgment regarding her other claims, and we need not address them. The essentials of the circuit court s reasoning as it relates to Yadon s claims of discrimination and retaliation, and the arguments of error posed by Yadon, are discussed more fully within the context of our analysis below. STANDARD OF REVIEW Summary judgment serves to terminate litigation where 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. Kentucky Rule of Civil Procedure (CR) It is well established that a defined material and substantial duties to mean duties that are normally required for the performance of your regular occupation and cannot be reasonably omitted or modified. Yadon submitted evidence to UNUM and accepted her disability payments from UNUM pursuant to these terms, and these terms substantially track the language of KRS (1). Therefore, Yadon s acceptance of disability payments from UNUM at least qualifies as a rebuttable admission that her lifting restriction could not be reasonably accommodated by TTAI. Yadon produced no affirmative evidence on summary judgment to rebut this. -7-

8 party responding to a properly supported summary judgment motion cannot merely rest on the allegations in his pleadings. Continental Casualty Co. v. Belknap Hardware & Manufacturing Co., 281 S.W.2d 914 (Ky. 1955). [S]peculation and supposition are insufficient to justify a submission of a case to the jury, and... the question should be taken from the jury when the evidence is so unsatisfactory as to resort to surmise and speculation. O Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citing Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). Furthermore, the party opposing summary judgment cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 481 (Ky. 1991) (internal citations and quotations omitted). On appeal, we must consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky.App. 1996). Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (footnote omitted). ANALYSIS 1. Disability Discrimination In Kentucky, -8-

9 [i]n order to establish a prima facie case of discrimination based on a disability, the plaintiff must show: (1) that he had a disability as that term is used under the statute (i.e., the Kentucky Civil Rights Act in this case); (2) that he was otherwise qualified to perform the requirements of the job, with or without reasonable accommodation; and (3) that he suffered an adverse employment decision because of the disability. Hallahan v. Courier-Journal, 138 S.W.3d 699, (Ky. App. 2004). With regard to Yadon s claim of disability discrimination against TTAI, the circuit court granted summary judgment in favor of TTAI after determining that Yadon had failed to demonstrate a genuine issue of material fact with regard to any of the above-stated elements. Upon review, we agree with the entirety of the circuit court s analysis on this point: Yadon has failed to come forth with evidence sufficient to defeat summary judgment. For the sake of brevity, we will limit our analysis to a discussion of the second factor Yadon was required to evince with affirmative evidence, i.e., that she was otherwise qualified to perform the requirements of [her] job, with or without reasonable accommodation[.] Id. We agree with the circuit court that Yadon failed to present any evidence that she was otherwise qualified for her position at TTAI. We adopt the circuit court s reasoning as follows: Under KRS (1), to establish that the Plaintiff was qualified for the job, she must be able to perform the essential functions of the job with or without qualification. [TTAI] has presented a plethora of evidence establishing the requirements for the Quality Assurance team member position. -9-

10 TTAI hired an independent consultant, Jeff Parmalee, a physical therapist, to evaluate the Quality Assurance team positions and the essential functions required to perform the job effectively. Parmalee was also tasked with determining whether there were any reasonable accommodations for [Yadon]. As discussed above, Parmalee s report stated that all the jobs in the QA Department require the use of both upper extremities, and that to perform all tasks an individual should be able to lift 32 lbs. from the floor to shelf height safely. In his deposition, Parmalee indicated that a person with a five-pound lifting restriction could not perform the QA job safely. [Parmalee confirmed that his opinion would not change if the lifting restriction was increased to ten pounds.] Parmalee also affirmed that if an individual had a lifting restriction, they would only be able to do a portion of the job, not the entire job. Additionally, [Yadon] herself states that she would not be able to do the job with her lifting restriction. She admits that she can only inspect smaller parts. Also, she admitted that she was required to lift over 30 pounds for the position and that she would require help. Also, while applying for her disability benefits, Yadon had to certify that she was limited from performing the material and substantial duties of [her] regular occupation due to [her] sickness or injury. Therefore, through [Yadon s] own testimony and admissions that the job required lifting over 30 pounds, and through her certification to UNUM that she should not perform the essential functions of her position, this Court finds that there is no genuine issue of material fact as to whether or not [Yadon] could perform the essential functions of her job. Therefore, the question shifts as to whether or not there was a reasonable accommodation for [Yadon]. Kentucky courts are clear on situations that do not, in fact, constitute reasonable accommodations. Reasonable accommodations do not include creating a new job. Wymer v. JN Properties, Inc., 50 S.W.3d 195, (Ky. 2001). [FN4] -10-

11 [FN4] In Wymer, the Supreme Court of Kentucky found that a work-related shoulder injury prohibited the Plaintiff from performing certain, but not all, physical tasks that were essential to her operating room duties. Citing [Hoskins v. Oakland County Sheriff's Dept., 227 F.3d 719 (6th Cir. 2000)], the Supreme Court stated that the employer did not have an obligation [to] accommodate beyond a reasonable accommodation. Also, the Sixth Circuit has held that having another employee perform another s lifting is not a reasonable accommodation. Bratten v. SSI Services, Inc., 185 F.3d 625, (6th Cir. 1999). In her Response, [Yadon] listed three possible accommodations: 1) the creation of a position where she simply does testing or calibration (and thus excusing her from rotation); 2) having another team member assist her in lifting; or 3) transfer her to another open position. As indicated in the testimony of [former TTAI human resources director] Mikeesha Shelby and the affidavit of [TTAI s current general manager for human resources] Paul Cunagin, Yadon was considered for every open position that came available between April 2005 and May 2007.[FN5] [FN5] Mr. Cunagin s Affidavit expressly outlines why, in fact, [Yadon] was not qualified for [each of] the available positions.[ 5 ] 5 In his affidavit, Cunagin averred that he was aware of Yadon s qualifications. He also outlined the duties, technical requirements, educational requirements, and lifting requirements of fifteen positions that became available between April, 2004, and May, In that context, his affidavit further demonstrated that Yadon was not qualified for any of these positions, due to her lifting restriction, and educational background, technical background, or a combination thereof. Yadon merely speculates that a transfer to one of those positions might have been a reasonable accommodation for her lifting restriction. However, Yadon made no argument below, and presented no evidence, that she met any of the requirements necessary for a transfer to any of those positions. Moreover, Yadon chose not to depose Cunagin regarding his affidavit or any other matter. -11-

12 [Yadon] introduces absolutely no evidence that she was not considered; she merely speculates and states that it defies credulity that she was not qualified, even when the Cunagin affidavit outlines why exactly she was not. Speculation alone is not enough to create a genuine issue of material fact. There is no evidence whatsoever that points to [Yadon] being qualified for any open position, other than one that would need to be created to accommodate her restriction. [Yadon] also asserts that a position where she merely performs calibration would be a reasonable accommodation. However, [TTAI] has provided evidence that calibration is simply a small part of the essential duties of the Quality Assurance team members. Plaintiff herself testified that calibration is simply part of her duties as a team member. Additionally, [TTAI] has provided a listing of essential duties of a Quality Assurance team member where calibration [is] clearly only part of the essential duties of the job. While [Yadon] attempts to argue that the Defendant s own expert [i.e., Parmalee] admitted that doing calibration only would be an accommodation, it is clear from the testimony from the expert that he stated that calibration was only a portion of a job as a whole. This would be creating a new job. [TTAI], under Kentucky law, is not required to create a new position as a reasonable accommodation. This is especially true when the new position would only cover a few of [Yadon s] required job duties and, therefore, it is not reasonable. Additionally, [Yadon] asserts that she could be able to do some of the testing duties if someone else were to assist her in the lifting. She argues that lifting ten pounds is not an essential function of the job. However, [Yadon] herself has asserted in her depositions that she was required to lift more than ten pounds for her job duties. While TTAI s listing of essential functions for the Quality Assurance position does not explicitly state that lifting ten pounds is a duty, it is very clear through the testimony of [Yadon] and [TTAI s] expert that lifting ten pounds is, in fact, an essential function, as lifting ten pounds is required to perform a number of the essential -12-

13 duties listed in the job description. Therefore, without the ability to lift ten pounds, one cannot perform the job, thus making it essential. This Court continues to follow the opinion of the Sixth Circuit in that having another employee help with the lifting at all times is not a reasonable [accommodation.] While [Yadon] argues that employees often assisted others with the lifting, this Court finds that easily distinguished from requiring someone to assist at all times. In essence, this would be creating a new job, as two people would be required to perform the duty, rather than the one normally required. Lifting is in fact an essential function of the Quality Assurance team member position, as indicated by both [Yadon] and [TTAI s] expert. Under the Americans with Disabilities Act, [TTAI] is not required to reassign essential functions of the job to another employee. [FN 6] [FN6] The Kentucky Civil Rights Act is interpreted to be consistent with the Americans with Disabilities Act. Hallahan, 138 S.W.3d at See Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th Cir. 1995), where the 8th Circuit specifically states that reallocating essential duties in not required under the ADA. See also Smith v. Blue Cross and Blue Shield of Kansas, Inc., 894 F.Supp (D. Kan. 1995) (Accommodation that eliminates essential function of job is not reasonable under Americans with Disabilities Act (ADA)); Haysman v. Food Lion, Inc., 893 F.Supp (S.D. Ga. 1995); Champ v. Baltimore County, 884 F.Supp. 991 (D. Md. 1995); Hershey v. Praxair, Inc., 969 F.Supp. 429 (S.D. Tex. 1997). Therefore, based on the evidence of record for both [TTAI] and [Yadon], [Yadon] was not able to perform the essential functions of her job and no reasonable accommodation was available for the Quality Assurance -13-

14 team member position. Therefore, there is simply no genuine issue of material fact as to whether or not [Yadon] was otherwise qualified to perform her duties with or without reasonable accommodation. 2. Retaliatory Discharge Even if an underlying claim of disability fails, a plaintiff may nevertheless prevail on a disability-retaliation claim. Bryson v. Regis Corp., 498 F.3d 561, 577 (6th Cir. 2007). With that said, Yadon also asserted a claim of retaliation against TTAI and Paul Cunagin, per KRS , based upon the fact that TTAI had discharged her from its employ some time after she had 1) requested reasonable accommodations from TTAI and 2) filed her charge of discrimination against TTAI with the Kentucky Cabinet on Human Rights (KCHR) and the Equal Employment Opportunity Commission (EEOC). In summarily dismissing this claim, the circuit court found that the approximately two-year interval between those two events and Yadon s eventual discharge on May 31, 2007, was too long a period of time and was insufficient by itself to provide a circumstantial inference of discrimination. See, e.g., Nguyen v. City of Cleveland, 229 F.3d 559, (6th Cir. 2000) (holding that even close temporal proximity, by itself, will not support an inference of retaliatory discrimination when there is no other compelling evidence of record). Furthermore, the circuit court held that Yadon had provided no other evidence aside from that two-year interval to support her claim of retaliation. As an aside, -14-

15 The plaintiff, in making out a prima facie case [for retaliation], must show that 1) she engaged in a protected activity, 2) she was disadvantaged by an act of her employer, and 3) there was a causal connection between the activity engaged in and the employer's act. Again, if the employer articulates a legitimate, non-retaliatory reason for the decision, the employee must show that but for the protected activity, the adverse action would not have occurred. Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 701 (Ky. App. 1991) (citing De Anda v. St. Joseph Hospital, 671 F.2d 850 (5th Cir. 1982)). Consequently, a plaintiff's prima facie case, combined with sufficient evidence to find that the defendant's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully [retaliated against the plaintiff]. Kentucky Dept. of Corrections v. McCullough, 123 S.W.3d 130, 134 (Ky. 2003) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105, 120 (2000)). On appeal, Yadon makes no argument that the two-year interval between her request for accommodations, her charge of discrimination, and her eventual discharge from TTAI were close enough in temporal proximity to warrant a circumstantial inference that TTAI retaliated against her; nor, for that matter, would we consider it to have such an effect. Instead, Yadon asserts that the circuit court overlooked certain direct evidence of record demonstrating that TTAI did discharge her in retaliation for either her request for accommodations or charge of discrimination. -15-

16 However, we agree with the circuit court s determination that Yadon has failed to present any affirmative evidence demonstrating a causal connection between her request for reasonable accommodations through either direct or indirect evidence. As noted above and at length, TTAI presented ample evidence that it discharged Yadon because, irrespective of her request to be accommodated, it was simply unable to accommodate her. Indeed, the direct evidence of retaliation that Yadon claims the circuit court overlooked is nothing beyond the same speculation and conjecture that she previously asserted in order to disprove that TTAI was unable to accommodate her. Speculation and conjecture are not evidence, nor do they warrant a trial. Cave, 202 S.W.3d at 588. In this light, Yadon s claim that TTAI discharged her in response to the claims of discrimination she filed with the EEOC and KCHR is even more tenuous. As argued by Yadon in her own appellate brief: Yadon did not fill out a Charge of Discrimination until August 13, She waited until after the August 9, 2005 meeting because she wanted to see how the meeting went before she filed a Charge. At the end of the August 9 th meeting TTAI had told her it would be in touch but would most likely not be able to accommodate her. Only after Yadon correctly concluded that TTAI would not accommodate her did she file the Charge of Discrimination.... TTAI admitted in the termination letter that the only reason it waited the two years to fire Yadon was because of the EEOC charge:... In light of the charge and because TTAI understood the charge would be -16-

17 investigated, TTAI took no action concerning your employment status. It is undisputed that TTAI s medical leave policy provides TTAI s employees up to one year of leave and, after an employee s leave expires, requires the employee to return to her previous position or face termination. It is undisputed that Yadon s medical leave began in April of 2004, and continued until May of It is undisputed that, prior to when Yadon filed her discrimination charge on August 9, 2005, TTAI already possessed at least two reports from Jeff Parmalee respectively dated April 27, 2005, and June 28, 2005 specifying the physical requirements of the Quality Assurance Team Member position, and containing Parmalee s conclusion that this position required team members to lift objects weighing up to 32 pounds with both extremities and an opposing grip. It is undisputed that lifting was an essential function of this position. It is undisputed that TTAI did not receive Yadon s charge of discrimination until months after it had already delayed her return to work, after the Parmalee examination, and after it had met with Yadon to evaluate her ability to return to work. And, it is undisputed that TTAI was unable to accommodate Yadon prior to when Yadon filed her charge of discrimination or at any time thereafter. Taken objectively, Yadon is essentially arguing that, but for her charge of discrimination, TTAI would have discharged her earlier than May of However, as earlier analyzed, TTAI could not accommodate Yadon at any time; it had a valid reason to discharge Yadon prior to when she filed her charge of -17-

18 discrimination (i.e., she was not qualified to perform the Quality Assurance position or any other open position); and, at that point, nothing required TTAI to maintain Yadon s employment, although it had done so for nearly two years longer than its policy required. Having failed to present any evidence demonstrating that TTAI s asserted justification for discharging her was false (i.e., that there simply was no way to reasonably accommodate Yadon), Yadon has precluded herself from submitting this matter to the jury. McCullough, 123 S.W.3d at 134. The final argument offered by Yadon in this matter is that the circuit court s summary judgment only references her retaliation claim against Cunigan, but makes no specific reference to her retaliation claim against TTAI. She argues that this Court should, therefore, remand to the circuit court for an additional ruling in relation to TTAI. Indeed, the circuit court s judgment makes no specific reference to Yadon s claim of retaliation against TTAI. But, it may not be questioned that the circuit court s judgment also had the effect of disposing of Yadon s claim of retaliation against TTAI because effect must be given to that which is unavoidably and necessarily implied in a judgment, as well as that which is expressed in the most appropriate language. Furlow v. Sturgeon, 436 S.W.2d 485, 486 (Ky. 1969) (citation omitted). The circuit court s judgment held, and we agree, that Yadon s claim of retaliation against Cunigan failed because Yadon did not put forth evidence demonstrating that she was terminated for any reason other than her inability to perform her job with or without reasonable accommodation. -18-

19 Thus, having failed to demonstrate that but for her protected activity (i.e., her request for reasonable accommodations or filing her discrimination charge), her termination would not have occurred. This is reason enough for Yadon s claims of retaliation to fail as a matter of law and with equal force against both Cunigan and TTAI. See id. (holding that where claims were mutually exclusive, adjudicating in favor of one is negating the other ). CONCLUSION For these reasons, the Judgment of the Pulaski Circuit Court is AFFIRMED. ALL CONCUR. BRIEF FOR APPELLANT: Gail M. Langendorf Florence, Kentucky Winter R. Huff Somerset, Kentucky ORAL ARGUMENT FOR APPELLANT: BRIEF FOR APPELLEES: P. Douglas Barr Lexington, Kentucky ORAL ARGUMENT FOR APPELLEES: P. Douglas Barr Lexington, Kentucky Gail M. Langendorf Florence, Kentucky -19-