RENDERED: AUGUST 24, 2023 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0004-DG
JOYCE TURNER APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NOS. 2019-CA-0328 & 2019-CA-0569 JEFFERSON CIRCUIT COURT NO. 11-CI-006125
NORTON HEALTHCARE, INC. APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY AFFIRMING
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 applied to Kentucky’s KCRA. This is the only issue
mentioned in the motion for discretionary review, so we limit our opinion to
1 Kentucky Revised Statutes (KRS) 344.010 – KRS 344.990. 2 42 U.S.C. § 12102(2)(b). This act was passed by Congress in 2008. 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.
3 The parties have also briefed the question of whether the trial court should be
affirmed based on the evidence when considering Turner’s “regarded as” claim. Such a claim does not require proof of actual disability. Ross v. Campbell Soup Co., 237 F.3d 701, 706 (6th Cir. 2001). But RAP 44(C)(5) requires a motion for discretionary review to contain a “clear and concise statement of (a) the material facts, (b) the questions of law involved, and (c) the specific reason or reasons why the judgment should be reviewed.” Turner has failed to comply with this rule relating to her “regarded as” claim; consequently, it will not be reviewed.
2 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
3 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
4 At trial this system was described as a “computerized safe deposit box” of drug
withdrawals and deposits in the drug dispensing cabinet, as well as recording the return or “wasting” of medications. 4 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
5 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
6 motion. Norton appealed and Turner filed a cross-appeal 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 evidence of a qualifying
disability under the KCRA.” It explained further,
it is undisputed that Turner returned to work at Norton after her chemotherapy treatments with no restrictions. Turner also repeatedly testified that she had no physical limitations resulting from her cancer or its treatment other than brief occasions of fatigue, nausea, and hot-flashes. In fact, she was very adamant about how well she felt during her treatment.
Finally, it noted that at oral argument before the Court of Appeals, Turner’s
counsel conceded, “We did not argue that Turner could not work, that she
could not take care of herself or perform manual tasks.” The Court of Appeals
endorsed the proposition that cancer could be a qualifying disability but there
must be “clearly articulable evidence that conforms with KRS 344.010(4) and
its associated case law, [or else] cancer cannot automatically be considered a
qualifying disability.” Thus, the Court of Appeals reversed the verdict. Turner
filed her motion for discretionary review before this Court arguing only that the
Court of Appeals erred in failing to apply the ADAAA to the KCRA. We granted
discretionary review to resolve that question but find it secondary to the fact
that under either the KCRA or the ADAAA standards, Turner failed to provide
sufficient evidence of a qualifying disability. 7 II. Standard of Review CR5 50.02 allows a party to move a trial court for a judgment
notwithstanding the verdict.
In ruling on either a motion for a directed verdict or a motion for judgment notwithstanding the verdict, a trial court is under a duty to consider the evidence in the strongest possible light in favor of the party opposing the motion. Furthermore, it is required to give the opposing party the advantage of every fair and reasonable inference which can be drawn from the evidence. And, it is precluded from entering either a directed verdict or judgment n.o.v. unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.
Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985). “On appeal the
appellate court considers the evidence in the same light.” Sutton v. Combs, 419
S.W.2d 775, 777 (Ky. 1967). The interpretation of statutes presents a de novo
question of law, and we are not bound by the lower courts’ interpretations.
Barnett v. Cent. Ky. Hauling, LLC, 617 S.W.3d 339, 341 (Ky. 2021).
III. Analysis Under the KCRA,
“Disability” means, with respect to an individual: (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) Being regarded as having such an impairment.
KRS 344.010(4). The KCRA was meant to be interpreted consistent with similar
federal laws, including the Americans with Disabilities Act of 1990 (ADA). KRS
344.020(1)(a). To succeed on a claim, an individual must prove they have an
5 Kentucky Rules of Civil Procedure.
8 impairment that substantially limits a major life activity. Howard Baer, Inc. v.
Schave, 127 S.W.3d 589, 592 (Ky. 2003). “Major life activities include, among
other things, walking, seeing, hearing, performing manual tasks, caring for
oneself, speaking, breathing, learning, and working.” Id. (internal footnote
omitted). “[A] person [must] be presently—not potentially or hypothetically—
substantially limited in order to demonstrate a disability. A ‘disability’ exists
only where an impairment ‘substantially limits’ a major life activity, not where
it ‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures
were not taken.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999). A
substantial limitation under the pre-ADAAA law is determined by the duration
of the impairment, the impairment’s nature and severity, and the long-term
impact resulting from the impairment. Larison v. Home of the Innocents, 551
S.W.3d 36, 44 (Ky. App. 2018) (citing 29 C.F.R. § 1630.2(j)(2) (effective until
May 24, 2011)). But “[a] person whose physical or mental impairment is
corrected by medication or other measures does not have an impairment that
presently ‘substantially limits’ a major life activity.” Sutton, 527 U.S. at 482-83.
The determination of whether a person is disabled under the act is an
“individualized inquiry.” Id. at 483. “Whether the plaintiff has an impairment
and whether the conduct affected by the impairment is a major life activity
under the statute are legal questions.” Hallahan v. Courier-Journal, 138 S.W.3d
699, 707 (Ky. App. 2004). “[W]hether the impairment substantially limits the
major life activity generally is a factual issue for the jury, but it may be resolved
upon summary judgment under the appropriate circumstances.” Id.
9 As detailed above, Turner consistently maintained throughout trial that
her cancer never impacted her ability to perform her job or perform a “major
life activity” as originally defined by the ADA or the KCRA. She testified that
this was true, despite her surgery, chemotherapy, and radiation therapy. Even
when she took medical leave, she testified that it was not of her own volition
but compelled by her supervisors. The only adverse effects Turner testified to
experiencing as a result of chemotherapy was fatigue, nausea, and hot-flashes.
She otherwise described the side-effects as “very, very little, very subtle,” and
struggled to think of a specific example. A person who testifies that she never
was substantially limited in the performance of a major life activity as a result
of her impairment simply cannot be deemed disabled under the KCRA. Ellison
v. Software Spectrum Inc., 85 F.3d 187, 191 (5th Cir. 1996) (“Obviously, her
ability to work was affected; but, as reflected in the above-quoted statute and
regulations, far more is required to trigger coverage . . . .”); E.E.O.C. v. R.J.
Gallagher Co., 181 F.3d 645, 655 (5th Cir. 1999); Liljedhal v. Ryder Student
Trans. Serv., Inc., 341 F.3d 836, 841 (8th Cir. 2003). Applying the KCRA,
federal district courts in Kentucky have reached the same conclusion.
Suchanek v. Univ. of Ky., No. CIV.A. 3:10-19-DCR, 2011 WL 3045986, at *8
(E.D. Ky. July 25, 2011); Watkins v. Shriners Hosps. for Child., Inc., No. 5:18-
CV-548-REW-MAS, 2020 WL 2309468, at *10 (E.D. Ky. May 8, 2020).
Per Larison, 551 S.W.3d at 44, the evidence established that the duration
of Turner’s impairment was, at most, approximately eight months but it must
be kept in mind that her surgical excision of the cancerous cells was successful
10 approximately a month after her initial diagnosis. Her chemotherapy was only
six months long. And her radiation therapy, which Turner testified was not
medically necessary though a prudent option, lasted only five weeks. Assuming
for argument’s sake she established her impairment was of a sufficiently long
enough duration, her testimony leaves no doubt that its severity was negligible.
Although Stage III cancer is certainly dangerous and life-threatening
when left untreated, the law forbids us to consider hypotheticals or
potentialities when considering an impairment. Sutton, 527 U.S. at 482. And
we are also compelled to consider an impairment according to its “corrected”
status by medication or other measures. Id. at 482-83. Turner’s testimony was
clear that she suffered only minor episodes of nausea, fatigue, hot flashes, and
fleeting moments of short-term memory loss. Other than this she stated she
preferred to be active, did not struggle with her work, and did not need to take
extended medical leave. She did not testify to any substantial limitation in her
personal life or completing daily tasks. The testimony does not establish her
impairment was anything but negligibly severe.
Finally, she did not testify to any long-term health impact resulting from
her cancer. Only a few months after being fired from Norton, in May 2010, she
was able to get a new job answering phone calls regarding healthcare coverage
for Medicaid claims. This job required a Registered Nurse license. She was
eventually promoted, and her duties required her to travel around Kentucky
auditing hospital records. She stayed at that job until November 2014 when
she voluntarily resigned. A few months later she retired, being 62 at the time,
11 and began working part-time as a private nurse. In this capacity, it was she
who helped other people go about their daily lives, driving them where they
needed to go, doing chores around the house, or simply keeping them
company. Thus, we agree with the Court of Appeals “that the evidence cited by
Turner at trial and in her argument on appeal concerning this issue omits any
specific evidence of a qualifying disability under the KCRA.” The Court of
Appeals is affirmed.
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. But even if we
assume for argument’s sake that the KCRA was intended to be interpreted
consistent with the ADAAA, Turner still failed to present sufficient proof of a
qualifying disability.
The ADAAA unambiguously states that “normal cell growth” is a major
life activity. 42 U.S.C. § 12102(2)(B). The ADAAA and accompanying
implementing regulations “set a low bar for proving an actual disability.” Baum
v. Metro Restoration Servs., Inc., 764 Fed.Appx. 543, 546 (6th Cir. 2019). But
12 when an impairment “require[s] medical knowledge to understand[,]” then a
plaintiff must still put on proof from a qualified expert. Id. In Baum, the
plaintiff suffered from heart disease and had noticed his treating physician as a
lay witness. But the plaintiff in that case “failed to disclose his doctor—or
anyone else with specialized medical knowledge—as an expert witness, [thus]
he lacks the evidence he needs. And without that evidence, he hasn't created a
factual issue over whether he is actually disabled.” Id. The ADAAA may set a
low evidentiary bar, but it is an evidentiary bar, nonetheless. “Although the
ADAAA makes the individualized assessment ‘particularly simple and
straightforward’ for diseases like cancer, 29 C.F.R. § 1630.2(j)(3)(ii), an
individualized assessment must still take place. To undertake that
individualized assessment, courts have required some evidence of the plaintiff's
substantial limitation—even when the limitation seems self-evident in context.”
Alston v. Park Pleasant, Inc., 679 Fed.Appx. 169, 172 (3rd Cir. 2017).
In Turner’s case, her Complaint did not mention normal cell growth. No
physician expert on cancer ever testified on her behalf. No such expert was
even proposed by Turner and there is no record such an expert was excluded
by the trial court. Moreover, the motions in limine proposed by Norton prior to
trial did not mention normal cell growth and the trial court made no rulings
that such evidence would not be allowed. Turner’s counsel’s opening statement
to the jury also never mentioned “normal cell growth” or any variation of that
phrase. No feasible argument exists that Turner was prevented from presenting
such evidence to the jury. The only mentions of “normal cell growth” were when
13 Turner’s counsel attempted to question Turner’s supervisors about the issue.
But they were not offered as expert witnesses to testify about cancer and their
qualifications to opine about cancer have not been argued by Turner on appeal.
When Turner’s counsel told the jury in closing arguments that she “couldn’t
have her cells grow normally,” Norton objected and the trial court sustained,
instructing Turner’s counsel to conform his argument to the evidence
presented at trial. In other words, no evidence regarding normal cell growth
was presented at trial. We conclude that even if the ADAAA were applicable to
the KCRA, Turner’s claim would still fail for lack of evidence.
IV. Conclusion Per the KCRA, there was a complete absence of proof when it comes to
Turner’s claim that she suffered an impairment that substantially limited a
major life activity. Turner testified consistently that she was never unable to
perform a major life activity for any significant duration from the time she was
diagnosed with cancer to the time she was fired by Norton. Additionally, even if
the ADAAA applied, Turner’s claim would still fail as she did not submit expert
testimony regarding normal cell growth. The Court of Appeals is affirmed.
All sitting. All concur.
14 COUNSEL FOR APPELLANT: Jeremiah Reece Soha Tajoddin Saiyad Kelly Parry-Johnson Reece Saiyed Parry-Johnson LLP
Paul Stewart Abney Abney Law Office, PLLC
COUNSEL FOR APPELLEE:
Donna King Perry Jeremy S. Rogers Robert C. Rives, IV Dinsmore & Shohl LLP
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 Friend Law, PSC
McKenzie Cantrell Kentucky Equal Justice Center