RENDERED: JULY 16, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0643-ME

MARION HUGHES; PHILLIP L. 

WESTERN; AND TERRI A. ROGERS, 

INDIVIDUALLY AND ON BEHALF 

OF ALL OTHER PERSONS 

SIMILARLY SITUATED APPELLANTS 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MITCH PERRY, JUDGE

ACTION NO. 07-CI-009996 

UPS SUPPLY CHAIN SOLUTIONS, 

INC.; UNITED PARCEL SERVICE, 

INC.; AND DEFENDANTS JOHN 

DOE 1-10 APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES.

LAMBERT, JUDGE: This is an interlocutory appeal taken pursuant to Kentucky 

Rules of Civil Procedure (“CR”) 23.06 by Marion Hughes, Terri A. Rogers, and 
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Phillip L. Western, as lead plaintiffs for the putative class (hereinafter “Hughes”),1

from the May 1, 2020, order of the Jefferson Circuit Court denying her motion for 

class certification of Count I of her Second Amended Complaint. Hughes sought 

class certification for employees of UPS, Inc., and UPS Supply Chain Solutions, 

Inc., who were subjected to use of two allegedly illegal leave policies, the 100% 

Health Leave Policy and the 12 Month Leave Policy (hereinafter, “the Leave 

Policies Class” or “the Disabled Class”). Because we hold that the circuit court did 

not abuse its discretion in denying class certification under Count I, we affirm.

This lawsuit began with the filing of a verified class action complaint

in the Jefferson Circuit Court on October 10, 2007. Marion E. Hughes, both 

individually and on behalf of all others similarly situated, was the sole named 

plaintiff, and she named UPS, Inc., UPS Supply Chain Solutions, Inc., 

(collectively, “UPS”) and 10 John Does as defendants. UPS, Inc., is the parent 

company of UPS Supply Chain Solutions, Inc., where Hughes was employed. 

Hughes alleged two claims: a disability discrimination claim under Kentucky

Revised Statutes (“KRS”) Chapter 344 in Count I and a wage and hour claim under 

KRS Chapter 337 in Count II. The two claims were later bifurcated. As this 

 

1 Marion Hughes is the only individual plaintiff listed under Count I of the complaint in any of 

the three complaints she filed. Therefore, she is technically the only individual party properly 

named as an appellant in this appeal, although she listed Terri A. Rogers and Phillip L. Western 

as individual appellants in her notice of expedited appeal.
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appeal addresses the disability discrimination claim in Count I, we shall only 

reference the allegations and procedural history in that claim, except in the interest 

of clarity. 

For her disability discrimination claim, Hughes defined the class, 

which she labeled as the Disabled Class, as follows:

All job applicants, and all current or former employees of 

UPS employed in the Commonwealth of Kentucky, with 

apparent or actual disabilities, or a history of being 

disabled, who have been denied the benefits of engaging 

in an interactive process for determining a reasonable 

accommodation in good faith, and/or who have been 

denied accommodations for their known disabilities, 

and/or refused to be reinstated by UPS to work duties 

that they can perform, with or without accommodation.

The Disabled Class excluded UPS officers, directors, and management, as well as 

their families. Hughes alleged that the Disabled Class consisted of several hundred 

persons in Kentucky and that it would be impractical to join all of the members 

because of its size. She alleged that there was a well-defined community of 

interest in the questions of law and fact involved in this claim that predominated

over questions affecting individual class members, such as whether UPS’ policies 

and procedures violated Kentucky laws and regulations, including KRS Chapter 

344. She alleged these claims were typical of the Disabled Class and that she 

would be able to fairly and adequately represent the interests of the class. 
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Under the factual allegations section, Hughes alleged that she had a 

qualified disability as defined under KRS 344.030. She alleged she suffered from 

chronic fatigue syndrome and fibromyalgia, and that, as a result, she was placed on 

short-term disability leave by UPS in 2003. She returned to work with restrictions 

in 2004. She underwent surgery in December 2005 and remained on short-term 

disability leave until March 11, 2006, when UPS determined that she was no 

longer disabled. Her restrictions remained, but UPS would not permit her to return 

to work until she was 100% healthy and under no work restrictions. She was told 

by Human Resources personnel that UPS had adopted a new 100% healthy policy 

as of January 1, 2006. Because she was unable to return to work without 

restrictions, her employment was terminated. As a result of the alleged unlawful 

policy and conduct, Hughes alleged that she and the members of the Disabled 

Class had suffered damages including lost wages and benefits, expenses, interest, 

emotional distress, and attorney’s fees. 

In October 2010, Hughes moved the court to file a first amended 

complaint to add additional named plaintiffs to the wage and hours claim in Count 

II. She stated that the substance of the complaint, including the claims she 

asserted, remained unchanged. 

In November 2010, UPS moved for a partial summary judgment on 

Hughes’ class allegations pursuant to CR 12.03 as to her disability discrimination 
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claim. UPS argued that KRS 344.040 prohibits discrimination against qualified 

individuals with disabilities, which would require the court to make an 

individualized case-by-case inquiry as to whether each class member met this 

requirement. Therefore, class certification was not appropriate, and it sought 

dismissal of the class element. UPS cited to the Third Circuit Court of Appeals’

opinion of Hohider v. United Parcel Service, Inc., 574 F.3d 169 (3d Cir. 2009), in 

support of this argument. UPS later withdrew the motion in light of its plan to 

remove the case to federal court. Upon remand, UPS filed another motion seeking 

the same relief. 

In January 2012, Hughes filed a motion seeking an extension of 

response time and indicated that she intended to file a second amended complaint 

to clarify her legal theories to avoid confusion as the claims in both counts moved 

forward. The court granted the motion for extension, providing Hughes with time 

to file a Second Amended Complaint and UPS with time to confirm whether it 

wished to proceed with its pending motion for a judgment on Count I. 

Hughes filed her motion for leave to file a Second Amended 

Complaint the following month. As with the filing of the first amended complaint, 

Hughes confirmed that her claims were not changing and that she was continuing 
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to seek relief for her wage and hour claim and her leave policies claim.

2

 After 

stating that UPS had mischaracterized her leave policy claim, Hughes stated she 

was “further crystaliz[ing]” this claim with additional facts and by narrowing the 

issue. She also sought to narrow her proposed class definition. And she 

specifically identified the two leave policies she was contesting as the 100% 

Healthy Leave Policy, as discussed above, and the 12 Month Leave Policy, which 

had not been previously identified. 

UPS objected to the filing of the Second Amended Complaint, noting 

that Hughes had consistently referred to Count I as a disability discrimination class 

claim based upon the 100% Healthy Leave Policy. For the first time, she was 

seeking to add a separate policy, a 12-month administrative termination policy, for 

which UPS raised a statute of limitations issue. The court granted the motion to 

file the Second Amended Complaint on March 7, 2012. 

In the Second Amended Complaint, Hughes reiterated that this 

version did not raise any new claims or add any additional plaintiffs. It was meant 

to clarify her claims. She redefined the “Illegal Disability Leave Policies” class as: 

“All current and former employees of UPS who were employed in the 

Commonwealth of Kentucky during the applicable limitations period and who 

 

2 Hughes previously referred to this claim as the disability claim and to the class as the Disability 

Class.
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were subject to a UPS leave policy[.]” She alleged that the Leave Policies Class 

members were subject to the same two leave policies, that her claim was typical of 

the class members’ claims, that she had common interests with the class members 

in finding that UPS’ leave policies were illegal per se, and that she had 

demonstrated her willingness to prosecute the interests of the class members via 

her qualified counsel. Hughes alleged that UPS violated Kentucky laws and 

regulations by adopting these inflexible leave policies and sought damages as a 

result. 

Shortly thereafter, UPS moved to dismiss Hughes’ individual and 

class-wide disability discrimination claims under Count I for failure to state a

claim upon which relief could be granted. It continued to argue that the court 

could not find unlawful disability discrimination under KRS Chapter 344 without 

an individualized, case-by-case inquiry into whether Hughes and each class 

member were qualified individuals with a disability. UPS noted that Hughes had 

removed all allegations in her Second Amended Complaint that she or any putative 

class member was disabled and instead alleged that the two policies were per se

violations of KRS 344.030. Because the allegation that a plaintiff is a qualified 

individual with a disability was a necessary component of a disability 

discrimination claim, UPS asserted that Hughes’ claim must fail.
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In response, Hughes argued that her disability leave policies claim had

been consistently presented to the court, beginning with the initial complaint, and 

that UPS’ motion to dismiss was untimely and premature procedurally. She 

continued to assert that UPS’ argument was based upon “a significantly false and 

somewhat misleading premise.” Hughes stated that she was not required to prove 

that she was a qualified individual with a disability. Rather, she was challenging 

the disability leave policies as “an impermissible pattern and practice” that

constituted per se violations of Kentucky law, entitling her to relief. 

In its reply, UPS disputed Hughes’ arguments as to whether its motion 

had been timely and properly filed as well as to whether she must allege that she is 

a qualified individual with a disability to establish her claim under KRS Chapter 

344. Hughes failed to cite any authority for her proposition that she did not need to 

do so by labeling her claim as asserting a per se violation of that chapter. UPS 

argued that the cases Hughes cited did not support her position as they either 

explicitly stated or inferred that the requirement to establish that a plaintiff is a 

qualified individual with a disability remained for discrimination claims. 

Hughes filed two supplemental filings following a hearing on June 11, 

2012. In the first one, she submitted case law supporting her contention that other 

courts had certified similar state law claims, including one involving a per se
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disability claim involving UPS out of California. At the conclusion of that filing, 

Hughes stated:

4. Plaintiff notes that UPS’ Leave Policies are per se

violations of not only KRS 344.040 (e.g. “regarding as” 

disabled), but also KRS 344.280 (e.g. interfering, 

obstructing and/or impeding an employee’s KRS 344 

rights) and KRS 336.700 (e.g. interfering with employee 

rights under Kentucky law). See also, KRS 446.070 

(civil enforcement statute for statutory violations).

In the second filing, she argued that it was not necessary for her to establish a 

prima facie case to survive a motion to dismiss, citing a recent decision by the 

Sixth Circuit Court of Appeals. 

UPS filed a response to these supplemental filings, disputing that her 

case citations had any relation to the current case. It also pointed out the long list 

of cases in which courts have denied certification in disability discrimination 

claims, including Hohider, supra. 

On July 27, 2012, the court entered an opinion and order denying 

UPS’ motion to dismiss, holding that in a light most favorable to Hughes, “there is 

a set of facts, which if proven could entitle [her] to relief.” UPS thereafter filed an 

answer to Hughes’ Second Amended Complaint, including as one of its defenses 

that Hughes failed to alleged facts sufficient to establish that she or any member of 

the purported class was a qualified individual with a disability. It specifically 

asserted that a class action was not appropriate on the disability leave class claim. 
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Several years later, on December 5, 2019, Hughes moved the court to 

certify the Leave Policy Class pursuant to CR 23. She stated that the two policies 

violated Kentucky law and that class-wide declaratory and injunctive relief was 

appropriate and necessary. 

The next day, UPS filed a motion to dismiss pursuant to CR 41.02 or 

to strike the class action allegations pursuant to CR 23.04, stating that Hughes had 

taken no action to advance Count I for almost six years until filing the motion for 

class certification. In addition to procedural deficits, UPS continued to argue that a 

disability discrimination claim under KRS Chapter 344 could not be established as 

a class based upon the individualized assessment such claims entail. 

Hughes opposed UPS’ motion, arguing that the case had been stayed 

for appellate resolution of the wage and hour class claim. UPS disputed this 

statement, reminding the court that the two counts had been bifurcated and were 

proceeding on different tracks. 

The court held a hearing on March 2, 2020, where the parties 

presented their respective arguments as to class certification and whether the claim 

should be dismissed. The court requested supplemental briefing, which both 

parties filed. In her brief, Hughes argued that both policies existed and applied to 

all non-union employees. She then argued that the leave policies were per se

violations of Kentucky law, stating:
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Kentucky’s protections for disability 

discrimination are broader than federal law.

This Court has said, with regard to Title VII 

and the Kentucky Civil Rights Act, that “the 

Kentucky Civil Rights Act (KRS 344.010 et 

seq.) tracks Title VII, but expressly provides 

broader relief than found on the face of the 

federal statute, ‘including damages for 

humiliation, personal indignity and other 

intangible injuries.’” 

[Noel v. Elk Brand Mfg. Co., 53 S.W.3d 95, 105 (Ky. 

App. 2000) (emph. added).] As part of these significant 

protections, Kentucky requires employers provide 

disabled employees with the opportunity to participate in 

a timely, interactive, and good faith accommodation 

process. Kentucky’s legislative protections also prohibit 

employers from obstructing or interfering with any 

employee’s rights.

It shall be an unlawful practice for a 

person, or for two (2) or more persons to 

conspire . . . to obstruct or prevent a person 

from complying with the provisions of this 

chapter or any order issued thereunder. 

[KRS 344.280 “Conspiracy to violate

chapter unlawful” (emph. added).] 

Further, Kentucky prohibits employers from discharging, 

discriminating, or limiting a disabled employee’s 

compensation, benefits, privileges, and opportunities. 

[KRS 344.040(1).] These protections necessarily 

demand that [an] employer’s disability policies – their 

interactive processes – comply with all other applicable 

statutes and regulations including, inter alia, Kentucky’s 

medical licensing statutes. [KRS 311.560 “Prohibition 

against practice of medicine . . . without license”.] 

(Footnote omitted.)
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Hughes went on to address the issues with the leave policies and argued that class 

certification was proper, stating that the Leave Policy Class was readily 

identifiable and ascertainable as the policies applied to all non-union employees 

who worked in a UPS facility. 

In its supplemental brief, UPS continued to argue that a class could 

not be certified because there was no evidence that any class member was a 

qualified individual with a disability, including Hughes herself. Hughes, UPS 

asserted, did not address this factor at all in her supplemental filing. 

Thereafter Hughes filed “objections” to UPS’ supplemental brief, 

stating that it contained factual inaccuracies, false statements, and 

misrepresentations. She continued to argue that the “qualified individual with a 

disability” finding was not relevant to this case as she was contesting the legality 

of the policies as applied to the class members. 

The court heard remote arguments from the parties (due to COVID-19 

restrictions) on April 2, 2020. By opinion and order entered May 1, 2020, the 

court denied Hughes’ motion to certify a “Leave Policies” Class and granted UPS’

motion to dismiss the class allegations under Count I. The court found that Hughes 

could not meet three of the four requirements to certify a class as set forth in CR 

23.01 (she only met the numerosity requirement), stating that “it would not be 

administratively feasible for this [c]ourt to determine whether a particular 
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individual is a member of the proposed class. The [c]ourt would need to engage in 

thousands of individual assessments to determine whether each class member is a 

qualified individual protected under KRS § 344.” In finding that Hughes failed to 

satisfy the commonality, typicality, and adequacy requirements, the court held that 

“[e]ven if the Leave Policies were deemed per se discriminatory, . . . [e]stablishing 

the unlawful discrimination alleged by Plaintiffs would require determining 

whether class members are ‘qualified’ under KRS § 344, an inquiry too

individualized and divergent to warrant certification under CR 23.01.” This 

interlocutory and expedited appeal now follows.

On appeal, Hughes contends that the circuit court abused its discretion 

in denying class certification because it applied an incorrect legal standard or 

factual predicate. On the other hand, UPS argues that the circuit court properly 

ruled in this matter and that Hughes has impermissibly raised an argument for the 

first time on appeal related to her allegation of specific statutory violations.

Our standard of review in such cases is set forth in Hensley v. Haynes 

Trucking, LLC, 549 S.W.3d 430, 444 (Ky. 2018): 

A trial court’s determination as to class 

certification is reviewed on appeal for an abuse of 

discretion. [Sowders v. Atkins, 646 S.W.2d 344, 346 

(Ky. 1983).] Under an abuse-of-discretion standard, this 

Court may reverse a trial court’s decision only if “the 

trial judge’s decision was arbitrary, unreasonable, unfair, 

or unsupported by sound legal principles.” [Goodyear 

Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 
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(Ky. 2000).] “Implicit in this deferential standard is a 

recognition of the essentially factual basis of the 

certification inquiry and of the [trial] court’s inherent 

power to manage and control pending litigation.” 

[Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 

(5th Cir. 1998).] Importantly, “As long as the [trial] 

court’s reasoning stays within the parameters of [CR] 

23’s requirements for certification of a class, the [trial 

court’s] decision will not be disturbed.” [Hines v. 

Widnall, 334 F.3d 1253, 1255 (11th Cir. 2003).]

In addition, the Hensley Court emphasized:

Because of the strict parameters of interlocutory 

appeals, the only question this Court may address today 

is whether the trial court properly certified the class to 

proceed as a class action lawsuit. We must focus our 

analysis on this limited issue and in so doing 

scrupulously respect the limitations of the crossover 

between (1) reviewing issues implicating the merits of 

the case that happen to affect the class-certification 

analysis and (2) limiting our review to the classcertification issue itself. Most importantly, “As the 

certification of class actions . . . . is procedural, such 

process cannot abridge, enlarge, or modify any 

substantive right of the parties.” “The right of a litigant 

to employ the class-action mechanism . . . is a procedural 

right only, ancillary to the litigation of substantive 

claims.”

Hensley, 549 S.W.3d at 436-37 (citations in footnotes omitted).

CR 23 sets forth the applicable rules for class actions in Kentucky. 

In practice, CR 23.01 and 23.02 create a two-step 

analysis for class certification. First, the circuit court 

must determine if all of CR 23.01’s prerequisites have 

been met. If any of the four are not satisfied, the circuit 

court must deny class certification. On the other hand, if 

the circuit court concludes that all four prerequisites of 
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CR 23.01 are met, it then proceeds to the second step. 

The second step requires the circuit court to determine if 

one of the three conditions of CR 23.02 is satisfied. If 

none is satisfied, class certification must be denied; 

however, if at least one of the three conditions is 

satisfied, the circuit court must certify the class.

Manning v. Liberty Tire Services of Ohio, LLC, 577 S.W.3d 102, 111 (Ky. App. 

2019). CR 23.01 first provides:

Subject to the provisions of Rule 23.02, one or more 

members of a class may sue or be sued as representative 

parties on behalf of all only if (a) the class is so 

numerous that joinder of all members is impracticable, 

(b) there are questions of law or fact common to the 

class, (c) the claims or defenses of the representative 

parties are typical of the claims or defenses of the class, 

and (d) the representative parties will fairly and 

adequately protect the interests of the class.

“The four requirements in CR 23.01 to maintaining a class action can be summed 

up as numerosity, commonality, typicality, and adequacy of representation

requirements.” Hensley, 549 S.W.3d at 442-43 (citation omitted). 

CR 23.02, in turn, provides:

An action may be maintained as a class action if the 

prerequisites of Rule 23.01 are satisfied, and in addition:

(a) The prosecution of separate actions by or against 

individual members of the class would create a risk of

(i) inconsistent or varying adjudications with 

respect to individual members of the class 

which would establish incompatible 

standards of conduct for the party opposing 

the class, or,
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(ii) adjudications with respect to individual 

members of the class which would as a 

practical matter be dispositive of the 

interests of the other members not parties to 

the adjudications or substantially impair or 

impede their ability to protect their interests; 

or

(b) the party opposing the class has acted or refused to 

act on grounds generally applicable to the class, thereby 

making appropriate final injunctive relief or 

corresponding declaratory relief with respect to the class 

as a whole; or

(c) the court finds that the questions of law or fact 

common to the members of the class predominate over 

any questions affecting only individual members, and 

that a class action is superior to other available methods 

for the fair and efficient adjudication of the controversy. 

The matters pertinent to the findings include: (i) the 

interest of members of the class in individually 

controlling the prosecution or defense of separate actions; 

(ii) the extent and nature of any litigation concerning the 

controversy already commenced by or against members 

of the class; (iii) the desirability or undesirability of 

concentrating the litigation of the claims in the particular 

forum; (iv) the difficulties likely to be encountered in the 

management of a class action.

The Hensley Court also considered what the proponent must 

demonstrate and what level of analysis a trial court must perform in deciding 

whether to grant or deny class certification:

In [Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 

131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011)], the U.S. 

Supreme Court held that “Rule 23 does not set forth a 

mere pleading standard. A party seeking class 
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certification must affirmatively demonstrate his 

compliance with the Rule - that is, he must be prepared to 

prove that there are in fact sufficiently numerous parties, 

common questions of law or fact, etc.” The Dukes Court 

expounded on this rule, stating, “certification is proper 

only if the trial court is satisfied, after a rigorous 

analysis, that the prerequisites of [Rule 23] have been 

satisfied.” “This ‘rigorous analysis’ standard will 

frequently require the trial court ‘to probe behind the 

pleadings before coming to rest on the certification 

question.’” “As well, this analysis will often entail some 

review of the merits of the plaintiff’s underlying claim.”

Although Kentucky has not expressly adopted this 

standard, this Court “has flirted with accepting this 

principle, at least to the point of looking beyond the bald 

allegations in a complaint before certifying a class.” We 

decline to adopt fully the “substantial possibility” test 

articulated in some jurisdictions. Rather, we will adhere 

to the guidance the U.S. Supreme Court in Dukes has 

given on this issue. We also acknowledge that our 

precedent holds that “[i]t is not necessary that there be a 

complete identification of facts relating to all members of 

the class as long as there is a common nucleus of 

operative facts.”

Hensley, 549 S.W.3d at 445 (citations in footnotes omitted). With this legal 

backdrop in mind, we shall consider whether the circuit court properly denied class 

certification on this count.

In the present case, the circuit court concluded that Hughes could not 

meet three of the four the class requirements of CR 23.01, namely, commonality, 

typicality, and adequacy. The commonality element requires a finding of 
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“questions of law or fact common to the class[.]” CR 23.01(b). The Hensley

Court expanded upon this element as follows:

The U.S. Supreme Court in Wal-Mart Stores, Inc. 

v. Dukes highlighted the focus of the commonality

question: Whether the class plaintiffs’ claims “depend 

upon a common contention . . . that is capable of class 

wide resolution – which means that determination of its 

truth or falsity will resolve an issue that is central to the 

validity of each one of the claims in one stroke.” This 

Court has also expounded on the commonality

requirement: “CR 23.01(b) requires that there must be 

questions of law or fact common to the class, but it does 

not require that all questions of law or fact be common.”

Hensley, 549 S.W.3d at 443 (citation in footnote omitted).

In the section of the opinion and order addressing commonality, the 

circuit court cited to Hohider, supra, in which the Third Circuit Court of Appeals 

addressed whether the district court properly granted class certification related to 

UPS’ 100% healthy policy under a claim for unlawful discrimination under Title I 

of the Americans with Disability Acts of 1990, 42 United States Code (“U.S.C.”)

§§ 12101-12117 (the ADA). 

Based on this analysis of plaintiffs’ claims under 

the ADA, assessment of whether class members are 

“qualified” is necessary to determine whether UPS has 

engaged in a pattern or practice of unlawful 

discrimination and thus can be held liable for violating 

the ADA with respect to the class. As discussed, in this 

case the ADA’s “qualified” standard cannot be evaluated 

on a classwide basis in a manner consistent with Rule 

23(a) and (b)(2)[.]
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Hohider, 574 F.3d at 196. The Court explained:

We have not previously addressed whether “100% 

healed” policies constitute per se discrimination under 

the ADA, and we need not do so here. Even if we were 

to adopt that theory, we do not believe plaintiffs can 

reach a determination of unlawfulness under the ADA by 

proving only the existence of a “100% healed” policy, 

without any inquiry into whether that policy has been 

used to discriminate against individuals protected by the 

ADA from such discrimination.

Id. at 195. 

The circuit court then turned to Kentucky’s Civil Rights Act, KRS 

Chapter 344 (the KCRA), which provides:

It is an unlawful practice for an employer:

(a) To fail or refuse to hire, or to discharge 

any individual, or otherwise to discriminate 

against an individual with respect to 

compensation, terms, conditions, or 

privileges of employment, because of the 

individual’s race, color, religion, national 

origin, sex, age forty (40) and over, because 

the person is a qualified individual with a 

disability, or because the individual is a 

smoker or nonsmoker, as long as the person 

complies with any workplace policy 

concerning smoking[.]

KRS 344.040(1). KRS 344.030(1), in turn, defines a “qualified individual with a 

disability” as:

[A]n individual with a disability as defined in KRS 

344.010 who, with or without reasonable 

accommodation, can perform the essential functions of 
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the employment position that the individual holds or 

desires unless an employer demonstrates that he is unable 

to reasonably accommodate an employee’s or 

prospective employee’s disability without undue hardship 

on the conduct of the employers’ business. 

Consideration shall be given to the employer’s judgment 

as to what functions of a job are essential, and if an 

employer has prepared a written description before 

advertising or interviewing applicants for the job, this 

description shall be considered evidence of the essential 

functions of the job[.]

Based upon this statutory language, this Court detailed the prima facie case a 

plaintiff must demonstrate to establish a claim for disability discrimination under 

the KCRA:

In 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. The Courier-Journal, 138 S.W.3d 699, 706-07 (Ky. App. 2004).

Here, the circuit court concluded that, even if the policies were per se

discriminatory, the assessment would require it to determine whether every class 

member was a qualified individual under the KCRA and thus eligible for its 

protection. This determination, the court stated, was too individualized and 

divergent for class certification to be appropriate. We agree and find no abuse of 

discretion in the circuit court’s decision on commonality. The need to analyze 
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each proposed class member to ensure that each person is a qualified individual 

with a disability is too burdensome for class certification. We also agree with the 

circuit court that the typicality and adequacy elements fail, also based upon the 

need that each class member must be a qualified individual with a disability. 

Finally, we agree that the circuit court did not need to address CR 23.02 as Hughes 

failed to meet all four elements in CR 23.01. 

Although we are affirming the circuit court’s ruling, we shall address, 

in part, Hughes’ argument that she was not raising a discrimination claim under the 

KCRA. Rather, she argued that her leave policy claims were based upon UPS’ per 

se violation of three statutes, KRS 311.560, KRS 336.700, and KRS 344.280. 

However, as UPS argued in its brief, Hughes “never articulated a standalone claim 

under these three statutes” between October 2007 and December 2019. Our review 

of the voluminous record uncovered very little mention of any of these statutes; we 

noted these mentions above. These brief mentions were certainly not enough to 

permit Hughes to make these alleged statutory violations the heart of her appellate 

argument and escape the application of Hohider. 

For the foregoing reasons, the opinion and order of the Jefferson 

Circuit Court denying Hughes’ motion for class certification of the Leave Policies 

Class is affirmed.

ALL CONCUR.
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BRIEFS FOR APPELLANTS:

Andrew J. Horne

Louisville, Kentucky

Michael D. Grabhorn

Andrew M. Grabhorn

Louisville, Kentucky

BRIEF FOR APPELLEES UPS 

SUPPLY CHAIN SOLUTIONS, INC., 

AND UNITED PARCEL SERVICE, 

INC.:

C. Laurence Woods III

Kyle D. Johnson

Louisville, Kentucky

Mark A. Perry

Washington, D.C.

Julian W. Kleinbrodt

San Francisco, California