Joyce Turner v. Norton Healthcare, Inc.

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.

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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

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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.
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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

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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

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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.
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 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.

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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.

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 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

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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,

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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

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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

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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.

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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

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