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DECEMBER 1, 2006; 2:00 P.M. NOT TO BE PUBLISHED

Commonwealth Of Kentucky Court of Appeals
NO. 2005-CA-001021-MR

STELLA FAYE KEGLEY

APPELLANT

v.

APPEAL FROM ROWAN CIRCUIT COURT HONORABLE BETH LEWIS MAZE, JUDGE ACTION NO. 03-CI-90253

MOREHEAD STATE UNIVERSITY AND ROGER BARKER

APPELLEES

OPINION AFFIRMING

** ** ** ** ** BEFORE: ABRAMSON, GUIDUGLI, AND VANMETER, JUDGES.

ABRAMSON, JUDGE. Stella Faye Kegley appeals from an April 21, 2005, summary judgment of the Rowen Circuit Court dismissing her claims for compensatory and punitive damages against Morehead State University and Roger Barker, the University's Director of Human Resources. Kegley contends that the defendants unlawfully

terminated her from her employment as a custodian in violation of KRS 344.040, a section of the Kentucky Civil Rights Act;

retaliated against her in violation of KRS 344.280 and KRS 342.197 for having asserted her civil and workers' compensation rights; and caused her to suffer extreme emotional distress. Finding insufficient grounds for all of Kegley's contentions, we affirm the trial court's judgment. This Court reviews summary judgments by considering, as did the trial court, whether "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 judgment as a matter of law." CR 56.03.

Although reasonable doubts must be resolved in her favor, the "party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Steelvest, Inc. v. Scansteel Service Center, Inc.,

807 S.W.2d 476, 482 (Ky. 1991). Construed favorably to Kegley, the record indicates that she began working as a building services technician for the University in 1990, and that through the years her duties regularly included such tasks as cleaning and supplying dormitory restrooms and unclogging commodes and showers. On

September 10, 2002, Kegley suffered a workplace injury when she was replacing a container of caustic cleaner on an overhead

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shelf and spilled some of the liquid on her face and in her left eye. She received prompt medical attention and fortunately

suffered no loss of vision, but she claims that her eyes were rendered painfully sensitive to the chemical fumes produced by bleach and other common cleaning agents. The University

notified its workers' compensation carrier of Kegley's accident and eventually Kegley was awarded temporary total disability benefits for the period from October 1, 2002, to October 24, 2002. Kegley filed a workers' compensation claim for permanent

disability benefits in August 2003, and apparently that claim was settled in 2004 for $5,000.00. In the meantime, Kegley's doctor released her to return to work by letter dated September 27, 2002. He noted

that her eyes remained sensitive and recommended that she avoid working with chemicals; work in well ventilated areas; and, to prevent accidental splashes of chemicals into her eyes, that she wear safety goggles. Given these restrictions and in hopes that

her unusual sensitivity would resolve, Kegley was permitted to return to a thirty-day period of light duty work, commencing October 7, 2002, during which she was excused from cleaning tasks involving chemicals. The University made it clear,

however, that at the end of that period she would be expected to resume the full scope of her usual duties or face termination. On October 21, 2002, Kegley walked into a janitor's closet that

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was full of drain cleaner fumes and, despite the fact that she was wearing safety goggles, immediately suffered a severe reaction. Her eyes reddened, teared, and became sore and itchy, This incident, too, was reported

and her left eye swelled shut.

to the University's workers' compensation carrier. Before the end of her thirty-day light duty period, Kegley requested and was granted leave from her job pursuant to the Family Medical Leave Act. She remained away from work until In a January 20, 2003

that leave was exhausted in January 2003.

letter, Kegley's eye doctor informed Kegley's supervisors that Kegley could return to work "but she should limit her exposure to irritant chemicals and fumes due to the sensitivity of her corneas. She may return to her normal duties as tolerated."

Given this release and the exhaustion of Kegley's leave, on January 23, 2003, Appellee Barker notified Kegley through her workers' compensation attorney that the University expected her to resume her regular duties or be deemed to have abandoned her employment. Kegley returned to work on January 28, 2003, and Kegley

was assigned to clean showers in one of the dorms.

refused to use bleach to clean the showers, as was the University's standard practice, but instead used Triad, which Kegley claims is a disinfectant that does not produce irritating fumes.

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That afternoon Kegley met with Barker in his office. Apparently he reiterated the University's position that if she was not able to resume her full duties her employment would be terminated and told her that he deemed goggles adequate protection against fumes. He also, according to Kegley, told

her that she would need to waive any future claim against the University for her alleged eye condition, including her as yet unfiled workers' compensation claim. When Kegley refused to

sign the waiver and asked Barker "Why are you discriminating against me?" Barker allegedly became upset and told her that she did not understand what discrimination was. The next day, when

Kegley again refused to use bleach to clean the showers, the University terminated her employment. Kegley maintains that her

discharge violated the Kentucky Civil Rights Act's provisions prohibiting discrimination and retaliation, as well as the Workers' Compensation Act's provision prohibiting retaliation. She also asserts an extreme emotional distress claim against the University and Barker. Initially, Kegley contends that even though her eye condition prevented her from using caustic cleaning chemicals, she could still perform all of her cleaning duties by substituting nonirritating cleaners. She maintains the

University discriminated against her in violation of the Kentucky Civil Rights Act, when it failed to accommodate her

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perceived disability by permitting her to make that substitution. KRS 344.040 provides in pertinent part that "[i]t

is an unlawful practice for an employer: (1) . . . to discharge any individual, . . . because the person is a qualified individual with a disability." As Kegley notes, under this

statute covered employers are obliged to make reasonable accommodations to retain employees with qualifying disabilities. Noel v. Elk Brand Manufacturing Company, 53 S.W.3d 95 (Ky. 2000). We agree with the University, however, that Kegley is

not entitled to the protections of the Act because she is not disabled. As our Supreme Court recently reiterated, the Kentucky Civil Rights Act was modeled after federal law (including particularly, for the purposes of this case, the Americans With Disabilities Act, 42 U.S.C.

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