RENDERED: JUNE 14, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1511-MR

MARSHALL YOUNG APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE

ACTION NO. 19-CI-005743

HAIER U.S. APPLIANCE SOLUTIONS, INC.,

D/B/A GE APPLIANCES APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: A. JONES, KAREM, AND LAMBERT, JUDGES.

JONES, A., JUDGE: Marshall Young appeals from the Jefferson Circuit Court’s

summary judgment entered in favor of Haier U.S. Appliance Solutions, Inc., d/b/a 

GE Appliances (“GEA”), which dismissed Young’s claims for disability 

discrimination and retaliation. After a thorough review, we affirm.
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I. BACKGROUND

GEA is a manufacturer of home appliances at its facility in Louisville. 

Except for skilled labor, all entry-level employees at GEA begin in what GEA 

refers to as the “Park Pool.” GEA employs its Park Pool workers as part of a 

progressive assembly line, in which they may be called upon to perform any one of 

approximately 1,300 different assignments as needed. All Park Pool workers 

rotate between these various production assignments, which may include up to four 

rotations in a single eight-hour shift. Additionally, Park Pool workers are subject 

to a collective bargaining agreement between GEA and the local union, under 

which Park Pool workers are not permitted to bid on the permanent, non-rotating

job assignments when they become available. Instead, such jobs are assigned to 

Park Pool workers based on seniority, as required under the collective bargaining

agreement. From that point forward, the worker is said to “own” the position and 

is no longer considered a member of the Park Pool.

The Park Pool position is highly physical in nature. Workers are 

required to be able to bend, stoop, crouch, walk, reach, and lift with varying 

degrees of frequency, depending on the assignment. Because of the physical

intensity of the Park Pool position, GEA worked with ergonomists to create a 

Functional Job Profile outlining the physical demands necessary for Park Pool 

employees. Most relevant to this case, the position requires “frequent” “reach[ing] 
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at or below shoulder level” and “reach[ing] above shoulder level.” The Functional 

Job Profile defines “frequent” as performing the stated activity up to five hours out 

of an eight-hour workday. (Record (R.) at 247.) The Park Pool job posting 

reiterates this physical requirement, informing applicants that the position involves 

frequent reaching and lifting. (R. at 248.)

In 2014, Young worked as an electronic maintenance technician 

employed by Adecco Technical, a temporary staffing agency, at GEA’s appliance 

park. Later, in September 2015, Young applied for a permanent position in GEA’s 

Park Pool. After Young passed the written examination and his personal 

interview, he received an offer of employment conditioned on passing a 

background check, a medical examination, and a physical screening called the “Fit 

For Work” test. Fit For Work asks the candidate to mimic several different types 

of movements which would be required of a Park Pool employee to perform tasks 

safely. Young took the Fit For Work screening on October 17, 2015, and he

completed three of the five tests without issue. However, Young failed to meet 

requirements for two separate tests involving posture changes, reaching, and the 

ability to connect or disconnect wiring harnesses. The physical therapist noted that 

Young had very limited range of motion in his left shoulder and upper arm. The 

physical therapist also noted that Young “frequently stopped to shake out [his] arm 
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due to only using the one arm,” as he could not use his upper left arm to complete

the function. (R. at 223.)

In his medical questionnaire, Young indicated that he had a birthrelated injury known as Erb’s palsy, which is “a nerve condition in the shoulder 

and arm that results in weakness or loss of muscle function.”1 Despite this 

condition, however, Young indicated on his questionnaire that he had no physical 

limitations, and that he did not require an accommodation for either the Fit For 

Work test or the Park Pool position. (R. at 206-07.) The Fit For Work evaluation 

summary regarding Young’s performance issued the following recommendation:

We offer you the following opinion concerning the 

individual’s present abilities to safely and successfully 

perform the essential functions of the position for which 

he was tested:

NOT CAPABLE – IMPAIRMENT: Not Capable of 

performing the essential functions of the position sought, 

but the candidate does have a present or past medical 

condition or impairment that we believe is contributing to 

their functional deficit. Such a result may trigger a 

reasonable accommodation consideration by the 

employer under the ADAAA or similar federal, state or 

local laws.

1

 Erb’s Palsy, THE CLEVELAND CLINIC, https://my.clevelandclinic.org/health/diseases/21986-

erbs-palsy (last visited May 17, 2024). Specifically, this condition results from a brachial plexus 

injury which may occur during difficult childbirth cases. The Cleveland Clinic states that “Erb’s 

palsy occurs in 0.9 to 2.6 per 1,000 live births or nearly 12,000 cases per year.” Id.
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(R. at 217.) The evaluation summary also noted that Young reported his Erb’s 

palsy, and this condition “contributed to his difficulty with safely lifting and 

controlling the required weight or performing the essential functions.” Id. 

Whether by accident or design, Young apparently did not receive a copy of his 

results from the Fit For Work evaluation.

Young’s medical records and his Fit For Work evaluation were 

provided to GEA’s contracted nurse case manager, Jessica Butcher. Her role was 

to review Young’s records to determine what restrictions Young might require in 

order to perform the essential functions necessary to work in the Park Pool. Nurse 

Butcher communicated extensively with Young via email and with his physicians 

over the next few months. First, on October 26, 2015, less than two weeks after 

his Fit For Work screening, Nurse Butcher informed Young that she was “waiting 

on a determination from medical.” Young responded with his own email, stating, 

“I passed every part of the physical. . . . I’m not understanding what medical is 

trying to determine?” (R. at 225.)

On November 4, 2015, GEA requested a release of Young’s medical 

records, and Young immediately complied. Nurse Butcher noticed a problem with 

the records provided by Young’s physician, Dr. Amin, in that the form did not 

provide sufficient information regarding Young’s impairment. In a form titled

“medical new hire clearance,” Dr. Amin left the entry blank in the location where 
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the form asked what restrictions would allow Young to perform the essential job 

functions. Then, on the next line asking for a basis for the restrictions, Dr. Amin 

wrote, “[patient] has limited [range of motion] of [left] shoulder.” (R. at 232.) 

Nurse Butcher noted that the information provided by Dr. Amin was inadequate

and asked for further information. Young, clearly frustrated, emailed Nurse 

Butcher to ask, “what additional information could they possibly need? I provided 

everything they have asked for.” On December 23, 2015, Nurse Butcher sent a fax 

to Dr. Amin which asked for Young’s restrictions based on the attached Functional

Job Profile and the Park Pool job posting.

Nurse Butcher and Young continued to exchange emails regarding his 

current status, as they waited for a response from Dr. Amin. Nurse Butcher 

suggested Young could see another doctor in an attempt to expedite the process. 

Young then made an appointment with Dr. Tien, which took place on February 2, 

2016. Dr. Tien physically examined Young, but he sent the form with a single 

vague restriction that Young should “avoid overhead activity.” Unfortunately, as 

with Dr. Amin, Dr. Tien had also neglected providing Nurse Butcher with the 

physical examination findings forming the basis for this restriction. 

On February 4, 2016, Nurse Butcher and Young once again 

exchanged emails about Young’s medical clearance form. Nurse Butcher told 

Young that she needed a copy of the physical examination from Dr. Tien’s office.
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Young was once again frustrated by the delay and complained to Nurse Butcher 

about needing to provide yet more information. As part of his email to Nurse 

Butcher, he wrote:

What physical exam? . . . What else is there to do! I am 

extremely getting annoyed by this because I’ve never felt 

like I was discriminated like I am feeling now! This is 

the last time I’m doing anything. Either they hire me or 

they don’t and to not hire me because of a physical 

disability is unlawful discrimination.

(R. at 238.) Nurse Butcher emailed and apologized for Young’s feelings of 

frustration, explaining that she needed “objective findings” for the basis of the 

conclusion on the medical clearance form. She told him that examples of such 

objective findings would be a copy of the physical examination, diagnostic studies, 

and/or imaging reports, which unfortunately Dr. Tien had not yet done. Nurse 

Butcher reassured Young that he had personally “done everything that we have 

offered,” and that the reason she had reached out to him for the physical 

examination was that sometimes a job candidate can get records from a physician 

more quickly than the employer. Id.

Afterward, Nurse Butcher contacted Dr. Tien directly and asked for 

specific findings for Young in conjunction with the Functional Job Profile and the 

job posting. On February 16, 2016, Dr. Tien faxed Nurse Butcher with the 

requested findings, indicating he had reviewed the posting and functional profile. 

Dr. Tien then gave updated findings, stating that “Mr. Young’s limitations are due 
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to a brachial plexus injury at birth[,]” with the following restrictions: “Limit 

shoulder motion. No overhead activities. No reaching above shoulder level. 

Limit reaching at or below shoulder level.” 

The next day, Nurse Butcher met with the GEA business group, which 

included Byron Brummit, the then-Lead Headcount Coordinator,

2

and Michael 

Groh from GEA Environmental Health Services. After a discussion of Young’s 

restrictions, in which Nurse Butcher provided only the restrictions provided by Dr. 

Tien, Brummit and Groh determined that GEA would not be able to accommodate 

Young’s restrictions:

Nearly every manufacturing position in Appliance Park 

requires continuous shoulder motion at or below shoulder 

level and Mr. Young’s restriction to “limit shoulder

motion” eliminated nearly every Park Pool job 

assignment, and thus, GEA could not accommodate the 

removal of this essential function of the Park Pool 

position.

Affidavit of Byron Brummit. (R. at 269-72.) On February 24, 2016, GEA 

informed Young that it was rescinding its conditional offer of employment based 

on the medical information it had received, the Fit For Work assessment, and Dr. 

Tien’s restrictions, stating that the restrictions could not be accommodated based 

on the essential functions of the Park Pool position. 

2

 During the pendency of this litigation, Brummit became the Human Resources Manager for 

GEA.
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On September 20, 2019, Young filed his verified complaint in 

Jefferson Circuit Court, asserting GEA had violated his rights under the Kentucky 

Civil Rights Act (KCRA), KRS3 Chapter 344 et seq., and Kentucky’s Equal 

Opportunities Act, KRS Chapter 207 et seq. Specifically, Young claimed: (1) 

GEA had engaged in disability discrimination when it failed to hire him and failed 

to reasonably accommodate him as a qualified individual with a disability; (2)

discriminated against him by failing to hire him due to his disability, in violation of 

KRS 207.150; and (3) unlawfully retaliated against him for engaging in protected 

activity opposing disability discrimination, in violation of KRS 344.280. The 

parties then engaged in significant pretrial discovery for approximately twenty 

months, with Young receiving three sets of interrogatories, two sets of requests for 

admissions, and four sets of requests for production of documents. During that 

time, the parties also took depositions of both Young and Nurse Butcher. 

GEA moved for summary judgment on May 28, 2021. As support, it 

attached the abovementioned affidavit of Byron Brummit, as to why Young had 

not been hired. Brummit’s affidavit also stated he was unaware of Young’s email 

to Nurse Butcher complaining of discrimination at the time he and Groh made their 

decision not to hire him. In response, Young moved to enter a scheduling order for 

trial and to stay briefing on summary judgment pending completion of discovery. 

3

 Kentucky Revised Statutes.
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GEA opposed Young’s motion, arguing the parties had engaged in extensive 

discovery for nearly two years, there were no pending discovery requests at the 

time of the motion, and there were no genuine issues of material fact.

After receiving the parties’ briefs on the issue, the trial court entered

its order granting summary judgment on November 18, 2021. The trial court found

that Young had failed to establish a prima facie case of disability discrimination 

due to his failure “to put forth any evidence that he was able to perform the 

essential functions of the Park Pool position with or without reasonable 

accommodation.” (R. at 760.) Furthermore, the trial court found that, even if 

Young could establish a prima facie case, he would not be able to establish 

discrimination under the burden-shifting framework of McDonnell Douglas 

Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The 

trial court so determined because it found “nothing of an evidentiary nature in the 

record which suggests that GEA’s reason for the revocation of its conditional offer 

of employment to Young did not actually motivate GEA’s decision.” (R. at 762.) 

In short, the trial court found that Young could not demonstrate that GEA’s reason 

for its failure to hire him was pretextual. Additionally, the trial court found 

Young’s claims of failure to accommodate, retaliation, and violation of Kentucky’s

Equal Opportunity Act were likewise without merit. This appeal followed.
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II. ANALYSIS

As an appellate court, we review a trial court’s order granting 

summary judgment de novo, “without deference to either the trial court’s 

assessment of the record or its legal conclusions.” Bruner v. Cooper, 677 S.W.3d 

252, 269 (Ky. 2023) (quoting Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 

2010)). “[S]ummary judgment is appropriate where there is no genuine issue of 

material fact and the moving party is entitled to judgment as a matter of law.” 

Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001) (citing CR4 56.03).

Significantly, “[t]he party opposing summary judgment cannot rely on their own 

claims or arguments without significant evidence in order to prevent a summary 

judgment.” Id. “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[.]” Baptist 

Physicians Lexington, Inc. v. New Lexington Clinic, P.S.C., 436 S.W.3d 189, 194 

(Ky. 2013). The burden of summary judgment “may be met by pointing out to the 

court that the respondent, having had sufficient opportunity for discovery, has no 

evidence to support an essential element of his or her case.” Steelvest, Inc. v. 

Scansteel Service Center, Inc., 807 S.W.2d 476, 481 (Ky. 1991) (citation omitted).

4

 Kentucky Rules of Civil Procedure.
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Young presents three issues on appeal. First, he argues the trial court 

erroneously granted summary judgment to GEA on his claim for disability 

discrimination. Second, Young argues the trial court incorrectly granted summary

judgment to GEA on his retaliation claim. Third, and finally, Young argues the 

trial court abused its discretion when it denied his motion to enter a scheduling 

order and stay summary judgment pending completion of discovery. We will 

consider each argument in turn.

Young first argues the trial court erred when it granted summary 

judgment against him regarding his claim of disability discrimination pursuant to 

the KCRA. 

Given similar language and the stated purpose of KRS 

Chapter 344 to embody the federal civil rights statutes, 

including the Americans with Disabilities Act (ADA), 

this court may look to federal case law in interpreting the 

Kentucky Civil Rights Act with respect to [the 

appellant’s] claim of disability discrimination under KRS 

344.040.

. . .

Under KRS 344.040(1), it is unlawful for an employer to 

discharge or otherwise discriminate against an individual 

with respect to compensation, terms, conditions or 

privileges of employment because the person is a 

“qualified individual with a disability.” The plaintiff 

bears the initial burden of establishing a prima facie case 

of disability discrimination against the defendant.
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Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705-06 (Ky. App. 2004)

(footnote and citations omitted). To establish a prima facie case, a plaintiff must 

demonstrate that (1) he was disabled under the relevant statute; (2) he was 

“otherwise qualified” to perform the requirements of the job, with or without 

reasonable accommodation; and (3) the employer took an adverse employment 

action against the employee because of his disability. Id. at 706-07.

Analyzed under this framework, the initial question is whether Young 

suffered from a “disability,” which the KCRA defines as “(a) [a] physical or 

mental impairment that substantially limits one (1) or more of the major life 

activities of the individual; (b) [a] record of such an impairment; or (c) [b]eing 

regarded as having such an impairment.” KRS 344.010(4). GEA argues Young

was not disabled, basing this assertion on Young’s own statements during his 

deposition that his Erb’s palsy did not limit his everyday life. In addition, GEA 

argues the trial court erroneously applied the federal ADA Amendments Act of 

2008 (ADAAA), with its broadened definition of disability, to its analysis of 

Young’s case – despite case law indicating that courts generally interpret the

KCRA consistently with the pre-ADAAA version of the ADA.

We agree with GEA that the trial court erred when it applied the 

ADAAA version of “disability” to the present case. The General Assembly has 

thus far declined to amend the KCRA to follow the ADAAA. The trial court took 
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note of our precedent in Larison v. Home of the Innocents, 551 S.W.3d 36, 43 (Ky. 

App. 2018) (“But no matter these current definitions, ‘the KCRA retains the 

former definition of disability[,]’ prior to the 2008 Amendments of the federal 

law.”). Yet the trial court blatantly chose to ignore our precedent and create its 

own rule when it applied the ADAAA to the KCRA. In so doing, the trial court 

violated the express mandate of SCR5 1.040(5), which requires our trial courts to 

follow applicable precedents in the Supreme Court and, when there are no such 

precedents, those established in the Court of Appeals. Leaving the trial court’s 

error aside for the moment, the current authoritative answer to this question was 

announced by our Supreme Court in Turner v. Norton Healthcare, Inc., 681 

S.W.3d 26 (Ky. 2023):

This brings us to the ADAAA and its impact on the 

KCRA. It has now been approximately fifteen years 

since the ADAAA was passed and the General Assembly 

has not expressed any intention to incorporate the federal 

amendments into the KCRA. Obviously, the protection 

of disabled persons from unjust discrimination, and how 

that class is to be defined for purposes of legal protection, 

is within the purview of the General Assembly’s 

authority to set public policy. We call upon the General 

Assembly to bring clarity to this issue, one way or 

another, as whether the KCRA should be updated in line 

with the ADAAA is ultimately not within this Court’s 

authority to decide.

Id. at 35.

5

 Rules of the Kentucky Supreme Court.
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Nevertheless, as the Supreme Court did in Turner, we will assume for 

the sake of argument that Young was disabled for purposes of the KCRA under 

either the ADA or ADAAA definition of the term. We nonetheless agree with the 

trial court’s decision to grant summary judgment because it correctly pointed out 

that Young was not “otherwise qualified” to perform the Park Pool position.

“Qualified individual with a disability” means an 

individual with a disability as defined in KRS 344.010 

who, with or without reasonable accommodation, can 

perform the essential functions of 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[.]

KRS 344.030(1). 

Based on the considerations listed, we agree with the trial court that 

Young could not perform the essential functions of the Park Pool position. 

Physical qualifications, such as the ability to perform overhead lifting and 

reaching, can constitute “essential functions” of a position; see Bratten v. SSI 

Services, Inc., 185 F.3d 625, 632 (6th Cir. 1999). The Functional Job Profile, the 

job posting, and the Fit For Work test were all evidence of the essential functions 

required by the Park Pool position, and such essential functions included reaching 
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and shoulder movement. The Functional Job Profile explicitly states that reaching 

at or below shoulder level and reaching above shoulder level was necessary 

approximately 66% of the time during any given shift. The job posting also 

indicated that the position was highly physical, and specifically listed frequent 

lifting and reaching as two examples of such physical activity. Furthermore, 

Young failed two of the five performance tests during the Fit For Work screening. 

Finally, it was not GEA but Young’s own physician, Dr. Tien, who gave 

categorical restrictions: “Limit shoulder motion. No overhead activities. No 

reaching above shoulder level. Limit reaching at or below shoulder level.” 

Brummit’s affidavit, stating that Young could not be hired because his restrictions 

eliminated him from nearly every Park Pool assignment, cannot be said to be 

unexpected under these circumstances.

Against this evidence, Young has offered nothing more than 

supposition and conclusory allegations of discrimination. In his deposition, he 

admitted that he had no evidence of discrimination aside from the length of time it 

took to get his medical clearance and his feelings of discomfort during the Fit For 

Work testing. He did not provide any evidence that he could perform the essential 

functions of the Park Pool position. He also admitted that he did not ask for an 

accommodation for his impairment. “Generally, an ADA plaintiff bears the initial 

burden of proposing an accommodation and showing that that accommodation is 
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objectively reasonable.” Kleiber v. Honda of America Mfg., Inc., 485 F.3d 862, 

870 (6th Cir. 2007) (internal quotation marks and citation omitted). Because 

Young failed to establish a prima facie case for discrimination, we agree with the 

trial court’s determination that summary judgment was appropriate. See, e.g., The 

Board of Regents of Northern Kentucky University v. Weickgenannt, 485 S.W.3d 

299 (Ky. 2016); Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846 (Ky. 2016).

Next, we turn to Young’s second argument, that the trial court 

erroneously granted summary judgment on his retaliation claim. Young contends 

that GEA’s decision not to hire him was retaliatory, predicated on his emailed 

complaint to Nurse Butcher that he felt discriminated against, and the failure to 

hire him would constitute unlawful discrimination. 

A prima facie case of retaliation requires a plaintiff to 

demonstrate “(1) that plaintiff engaged in an activity 

protected by Title VII; (2) that the exercise of his civil 

rights was known by the defendant; (3) that, thereafter, 

the defendant took an employment action adverse to the 

plaintiff; and (4) that there was a causal connection 

between the protected activity and the adverse 

employment action.”

Brooks v. Lexington-Fayette Urban County Housing Authority, 132 S.W.3d 790, 

803 (Ky. 2004) (quoting Christopher v. Stouder Memorial Hospital, 936 F.2d 870, 

877 (6th Cir. 1991), cert. denied, 502 U.S. 1013, 112 S. Ct. 658, 116 L. Ed. 2d 749 

(1991)). 
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As the trial court correctly determined, Young cannot show the 

second and fourth steps described in Brooks to establish a prima facie case. Step 

two requires showing that the decision maker knew about the protected activity. 

Yet the record shows that the only subject discussed at the meeting on February 17, 

2016, was Young’s set of restrictions as provided by Dr. Tien. Further, in his 

affidavit, Brummit states he had no knowledge of Young’s email complaining of 

discrimination at the time the meeting took place. In addition, step four requires 

showing that there was a causal connection between the protected activity and the 

employer’s adverse action. Young has nothing more than his subjective belief that 

the two items are connected, which is not sufficient. “A party’s subjective beliefs 

about the nature of the evidence is not the sort of affirmative proof required to 

avoid summary judgment.” Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. 

App. 2007). Because Young failed to establish a prima facie case regarding 

retaliation, here too we agree with the trial court’s determination that summary 

judgment was appropriate.

Finally, in Young’s third argument, he contends the trial court abused 

its discretion when it declined his motion to enter a scheduling order and stay 

briefing on the summary judgment motion pending completion of discovery. In 

essence, Young argues the trial court cut short the discovery period and granted 

summary judgment in the case prematurely. “[Summary judgment] is proper only 
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after the party opposing the motion has been given ample opportunity to complete 

discovery and then fails to offer controverting evidence.” Suter v. Mazyck, 226 

S.W.3d 837, 841 (Ky. App. 2007). 

Although Young is correct that summary judgment must not be 

prematurely granted, we cannot agree that it was premature in this case. Discovery 

in this case took place over nearly a two-year period, over the course of which the 

parties requested and received significant discovery. As previously mentioned, 

GEA responded to three sets of interrogatories, two sets of requests for admissions, 

and four sets of requests for production of documents. In addition, the parties took 

depositions of both Young and Nurse Butcher, and their email correspondence 

forms the bulk of the evidence constituting the interactions between Young and 

GEA. Young contends that summary judgment was not appropriate because 

discovery was not yet completed. However, completed discovery is not required 

for summary judgment – “only that the opposing party had the opportunity to do 

so.” Id. at 842. Moreover, at the time GEA moved for summary judgment, Young 

did not have any pending discovery requests, and he failed to adequately explain to 

the trial court why additional discovery was necessary. Under the circumstances of 

this case, we cannot say the trial court’s decision to deny Young’s motion to stay 

summary judgment pending further discovery was an abuse of discretion.
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III. CONCLUSION

For the foregoing reasons, we affirm the trial court’s order granting 

summary judgment.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Soha T. Saiyed

Kelly M. Parry-Johnson

Jeremiah W. Reece

Louisville, Kentucky

BRIEF FOR APPELLEE:

Emily N. Litzinger

Chad M. Zimlich

Louisville, Kentucky