Turner v. Norton Healthcare, Inc.

681 S.W.3d 26

Joyce TURNER, Appellant

v.NORTON HEALTHCARE, INC., Appellee

2022-SC-0004-DG

Supreme Court of Kentucky.

August 24, 2023

ON REVIEW FROM COURT OF APPEALS, NOS. 2019-CA-0328 & 2019-CA-0569, JEFFERSON CIRCUIT COURT NO. 11-CI-006125

COUNSEL FOR APPELLANT: Jeremiah Reece, Soha Tajoddin Saiyad, Kelly Parry-Johnson, Reece Saiyed Parry-Johnson LLP, Paul Stewart Abney, Louisville, Abney Law Office, PLLC.

COUNSEL FOR APPELLEE: Donna King Perry, Jeremy S. Rogers, Robert C. Rives, IV, Dinsmore & Shohl LLP, Louisville.

COUNSEL FOR AMICUS CURIAE, KENTUCKY COMMISSION ON HUMAN RIGHTS: L. Joe Dunman, Colt C. Sells, Sana Abhari.

COUNSEL FOR AMICUS CURIAE, KENTUCKY EQUAL JUSTICE CENTER & SIOBHAN DIAMOND: John S. Friend, Louisville, Friend Law, PSC, McKenzie Cantrell, Kentucky Equal Justice Center.

OPINION OF THE COURT BY JUSTICE CONLEY

[1] This case is before the Court on discretionary review of the opinion of the Court of Appeals that reversed the verdict of the jury that found in favor of the Appellant, Joyce Turner. Applying the Kentucky Civil Rights Act (KCRA),¹ the Court of Appeals ruled that Turner had failed to establish that she had a qualifying disability as a matter of law, and her case should not have gone to the jury. In other words, that the trial court should have granted Norton Healthcare, Inc.’s (Norton) motion for a directed verdict or its motion for judgment notwithstanding the verdict. Turner moved for discretionary review, arguing that the Americans with Disabilities Act Amendments Act (ADAAA)² is controlling and should be ap- plied to Kentucky’s KCRA. This is the only issue mentioned in the motion for discretionary review, so we limit our opinion to this issue. RAP 44(c)(5); Indiana Ins. Co. v. Demetre, 527 S.W.3d 12, 41 (Ky. 2017) (citing Ellison v. R & B Contracting, Inc., 32 S.W.3d 66, 71 (Ky. 2000)).³ Consequently, much of the argument before this Court has centered on the General Assembly’s intent in passing the KCRA, and the effect of the ADAAA. We commend the parties for their thorough briefing of this issue, but we conclude under either statute that Turner failed to demonstrate she had a qualifying disability. We, therefore, decline to answer whether the KCRA incorporates the ADAAA as that is a secondary question unnecessary to answer to reach resolution in this case.

I. Facts

Turner worked as a registered nurse for Norton Suburban Hospital for approximately eight years. In June 2009, she was diagnosed with Stage III metastatic breast cancer. She required surgery, chemotherapy, and radiation therapy. Her surgery was in July 2009, followed by chemotherapy for six months. Radiation therapy began in January 2010 and concluded in February that same year.

In October 2009, three months into her chemotherapy, Turner’s supervisors compelled her to take a three-month medical leave of absence. Turner opposed taking leave but, as she testified, "I got the distinct impression that this decision had been made, that I would be taking leave." Turner believed if she did not acquiesce in taking leave her job would be in jeopardy.

Turner returned to work in January of 2010, having requested and received an accommodation to move her lunch break, two ten-minute breaks, and an extra twenty minutes accommodated, to the end of her shift so that she could go to her radiation therapy. This therapy was three twenty-minute treatments per week. On the first day of scheduled treatment, however, Turner was informed the accommodation had been revoked as no other nurses could cover the hour she would be gone. Despite this, Turner made it to her first treatment and was told that so long as she could leave promptly at the end of her shift, the radiation center would stay open late on her behalf. Turner informed her supervisors of this, and they approved, but on January 15 they informed Turner that she would have to remain "on call" at the end of her shift one day per week. This "on call" duty was allegedly random so she could not schedule around it. Turner testified that she was unaware of any other nurse on her shift also having to remain on call one day per week in January 2010. Ultimately though, she was in fact never required to stay on call as she was accommodated for the duration of January and she was supposed to start on a new shift which would allow her to get her treatments in the morning before work, starting in February.

On January 26, Turner’s supervisor requested an audit of Turner’s medication transactions for the month of January. Norton used the Pyxis Medstation system to track transactions and provide information on the quantities of narcotics and stored medication prior to retrieval by a nurse or doctor.⁴ This audit apparently revealed sixteen violations of medication disbursement, i.e., missing narcotics. On January 27, Turner met with her supervisors and an Employee Relations Manager, where she was told they believed Turner had returned to work too soon, and that she might be suffering from "chemo brain," a side-effect of chemotherapy that manifests as confusion and delayed reaction. They suggested Turner should seek to take additional medical leave but also placed her on administrative leave pending an investigation into the missing narcotics. An additional audit of Turner’s Pyxis Medstation records for July 2009, the month she underwent surgery, revealed five more alleged violations. On February 1, Turner was fired. A formal complaint was lodged with the Kentucky Board of Nursing, the Louisville Metro Police Department, and the federal Drug Enforcement Agency. The Kentucky Board of Nursing would eventually dismiss its investigation of Turner and no disciplinary action was taken against her. There is no evidence criminal charges were ever filed against her. At trial, Turner did have an expert testify regarding these alleged violations. He testified that eighteen of the twenty-one identified violations could be accounted for with "benign explanations." The expert testified that Norton’s investigation was not in conformity with industry standard, therefore negligent, because it did not account for the "full audit trail" data. He also stated that he could not exclude the possibility that Norton’s departure from the industry standard was intentional because said data was available to Norton at the time of its investigation; but neither could he say it was intentional.

Of her own testimony, Turner testified she took two weeks off work after her surgery to remove the cancer because she had a drain for fluid under her arm. She was able to return to work after this drain was removed. She also told her doctor prior to beginning chemotherapy that she was feeling fine and not anticipating taking off work; however, he convinced her to prepare to take intermittent medical leave when necessary. She only did so once in October. She testified to being unconcerned about working while on chemotherapy, stating she felt fine and preferred to be active. She said she had "very, very little, very subtle things" when it came to side-effects from the chemotherapy affecting her mind and memory. She gave an example of watching a television show with her daughter and forgetting an immediately previous scene. She said she was "stretching" to even give an example. But she also testified she was unaware of any instance when these slight memory issues affected her job performance, and that none of her co-workers or supervisors informed her of an instance when memory issues might have affected her job performance. Of her other side-effects from chemotherapy she testified to hair loss, fatigue, nausea, and hot flashes but she did not testify to any of these being of any significant duration. Turner was clear these side effects did not interfere with her work, and she strategically scheduled her chemotherapy around her work schedule to ensure any side effects, if they should occur, would more likely do so when she was not working. In October 2009, when her supervisors pressed her to take extended medical leave, they told her they believed she was stretching and overdoing herself. Turner testified she was thrown off and confused as to why they would think that. When she asked her supervisors if there was a problem with her performance they responded, "No, definitely not." Finally, when she returned to work in January 2010, she was specifically released by her doctor to work without restrictions and the only accommodation she needed was merely related to scheduling as detailed above.

Turner filed suit against Norton in September 2011, alleging discrimination under the KCRA on the basis of a disability or perceived disability; on the basis of age; and a claim for punitive damages and intentional infliction of emotional distress. The case went to trial in June 2018. After four days, the parties closed their proof and Norton moved for a directed verdict. Norton had argued that Turner failed to demonstrate her cancer was a qualifying disability under the KCRA. The trial court denied the motion. The jury found in favor of Turner, awarding her $91,139.59 in backpay and $1 million in damages for embarrassment and humiliation. The trial court reduced the backpay award some but otherwise confirmed the verdict and entered judgment accordingly. Norton filed a motion for judgment notwithstanding the verdict, arguing again that Turner had failed to meet her burden that she was actually disabled under the KCRA. Turner argued that the KCRA should be interpreted in conformity with the 2008 ADAAA. The trial court denied the motion. Norton appealed and Turner filed a crossappeal regarding the reduction of backpay.

At the Court of Appeals, the court ruled that the ADAAA did not apply to the KCRA. Accordingly, pre-ADAAA federal law was still applicable in interpreting and applying the KCRA. Under those standards, the Court of Appeals ruled, "that the evidence cited by Turner at trial and in her argument on appeal concerning this issue omits any specific...