TORTS: Bohl v. City of Cold Spring (COA 11/13/2009)

Bohl v. City of Cold Spring
2008-CA-002162 11/13/09 2009 WL 3786633

Opinion by Senior Judge Lambert; Judges Nickell and VanMeter concurred.

The Court affirmed a summary judgment in favor of the appellee city on appellant’s claims for disability discrimination, retaliation, constructive discharge, intentional infliction of emotional distress (IIED), and disability harassment. The Court ultimately held that summary judgment was properly granted.

In reaching that conclusion the Court first held that the trial court correctly granted summary judgment on appellant’s disability discrimination claim. Although appellant made a prima facie showing that he was “otherwise qualified” to perform his job when he produced evidence that he continued to perform his job to the satisfaction of the employer after he was diagnosed with multiple sclerosis (MS) and that he suffered an adverse employment action due to the disability when he was removed from his shift as detective, he failed to provide any proof that the city’s explanation that it had a legitimate business purpose in acting for the safety of appellant, other police officers and the community, in removing appellant from his shift was false.

The Court next held that summary judgment on the IIED claim was proper because the IIED claim was subsumed by the KRS Chapter 344 claims of disability discrimination, retaliation and disability harassment.

The Court next held that summary judgment was proper on the retaliation claim when appellant failed to overcome appellee’s proof that it had a legitimate, non-discriminatory reason for its actions.

The Court next held that the trial court properly granted summary judgment on the disability harassment claim because the actions complained of did not create a pervasive abusive work atmosphere.

The Court finally held that the trial court properly granted summary judgment on the claim for constructive discharge because the conditions complained of were not intolerable and did not compel appellant’s resignation.

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