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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON REBA CRABTREE, Plaintiff, v. MONTICELLO FLOORING & LUMBER INC. and JOHNNIE CRABTREE, Defendants. ) ) ) ) ) ) ) ) ) )

No. 6:08-CV-149-REW

OPINION AND ORDER

*** *** *** *** Defendants, through counsel, requested leave to file a dispositive motion and tendered a related motion for summary judgment. See DE #33 (Motion for Leave); DE #34 (Motion for Summary Judgment); DE #34-1 (Memorandum in Support). Plaintiff, through counsel, filed responses in opposition to the motion for leave and the motion for summary judgment. See DE #35 (Response opposing leave); DE #39 (Response opposing summary judgment). Under the original schedule governing dispositive motions, the parties had until June 5, 2009 (then August 31, 2009) to file such motions. See DE # 16 (Scheduling Order); DE # 22 (Minute Entry Order modifying deadlines). On August 31, 2009, Defendants filed a dispositive motion based only on discovery violations and not on the merits. See DE #24 (Motion). The Court denied that motion and put the case back on schedule. Both sides, to that point, had failed to comply with certain deadlines, and the Court gave Defendants a new date, following discovery, by which to seek leave to file a later summary judgment motion. See DE #29 (Minute Entry Order for Final Pretrial Conference); DE #31 (new Scheduling Order).

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Thus, the Court sought to assure that Defendants would receive adequate discovery and then have an opportunity to raise dispositive issues on a complete pretrial record. Defendants did file a motion for leave, but the motion presented no justification for the failure to make a substantive motion previously. Further, and more importantly, the dispositive motion did not discuss, rest on, or present deposition testimony, discovery responses, or other information generated during the interim discovery period. Truly, as Plaintiff posits, Defendants' motion could have been filed in the same form at any point after the filing of the case, because the motion in essence simply targets the complaint's allegations. The motion's substance actually mirrors one under Federal Rule of Civil Procedure 12(b)(6) rather than one under Rule 56. Because of the posture, the Court in its discretion DENIES the motion for leave to file the later summary judgment motion. The new deadline did not advance the record presented beyond the mere pleadings. Alternatively, the Court does discuss the merits presented and identifies the factual and legal issues to be resolved at trial. For the reasons stated, the Court also would DENY the summary judgment motion, as now presented. I. Background This case, which alleges violations of the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and the Kentucky Civil Rights Act, arises out of Plaintiff Reba Crabtree's employment relationship with Defendant Monticello Flooring, a relationship that began in 2002 and ended August 1, 2006. Plaintiff began as an organizer for the back room and progressed through a series of jobs including (chronologically) flooring grader, tally marker for a flooring inspector, and nesting. The nesting position involved her standing at a station, "gathering small pieces of wood, stacking them into a specific sized pile, feeding the pile into a machine that bundles,

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and lifting the bundle, carrying it, and setting it on a pile." See DE #28-2 (Reba Crabtree Affidavit) at 3,

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