Norton Healthcare, Inc. v. Disselkamp

• Decision Date: 28 May 2020
• Docket Number: 2018-SC-000274-DG,2019-SC-000102-DG
• Parties: NORTON HEALTHCARE, INC., Appellant/Cross-Appellee v. Donna DISSELKAMP, Appellee/Cross-Appellant Donna Disselkamp, Appellant/Cross-Appellee v. Norton Health Care, Inc., Appellee/Cross-Appellant
• Court: United States State Supreme Court — District of Kentucky

600 S.W.3d 696

NORTON HEALTHCARE, INC., Appellant/Cross-Appellee

v.Donna DISSELKAMP, Appellee/Cross-Appellant

Donna Disselkamp, Appellant/Cross-Appellee

v.Norton Health Care, Inc., Appellee/Cross-Appellant

2018-SC-000274-DG

2019-SC-000102-DG

Supreme Court of Kentucky.

MAY 28, 2020

COUNSEL FOR APPELLANT/CROSS-APPELLEE: Anna Christine Beilman, Robert W. Bishop, John Saoirse Friend, Louisville, Bishop Friend, P.S.C.

COUNSEL FOR APPELLEE / CROSS-APPELLANT: Donna King Perry, Robert Charles Rives IV, Jeremy Stuart Rogers, Dinsmore & Shohl LLP, Louisville.

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

I. BACKGROUND.

Donna Disselkamp relied on circumstantial evidence at trial to support her age-discrimination claim under the Kentucky Civil Rights Act against her former employer, Norton Healthcare, Inc. Under Kentucky case law, an age-discrimination claimant, like Disselkamp, attempting to prove age discrimination using circumstantial evidence must first make a legally sufficient initial showing under what is known as the McDonnell Douglas framwork¹ that she can prove, among other elements, that her employer replaced her with a substantially younger person. The primary issue is whether the trial court committed reversible error by requiring the jury, rather than the trial court itself, to make the specific factual determination about whether Norton replaced Disselkamp with a substantially younger person. Like the Court of Appeals, we hold that instructing the jury to decide this McDonnell Douglas element was reversible error by the trial court. Accordingly, we affirm the decision of the Court of Appeals to reverse the judgment and remand this case to the trial court for further proceedings.

II. THE FACTS LEADING UP TO DISSELKAMP'S SUIT AGAINST NORTON.

Disselkamp began working as a supervisor of Imaging Services at Norton Suburban Hospital in 2002.² As supervisor, Disselkamp was responsible for preparing Quality Management Team (QMT) reports, wherein she collected data from patients’ records each month and randomly sampled the data regarding points such as patient-shield reports and ultrasound observations. The purpose of the QMT reports was to monitor whether Norton's employees were adhering to institutional policy requirements. Disselkamp maintained a "QMT binder" with the data needed to create the reports.

In 2012, Norton terminated employment of Disselkamp's immediate supervisor, Kevin Hendrickson, and replaced him with Lori Bischoff. In October that same year, Disselkamp emailed Bischoff the QMT reports, at Bischoff's request, reflecting the data collected from the previous three months. As requested by Bischoff, Disselkamp later sent most of the supporting data used to draft the reports, but she did not include July reports relevant to the patient-shielding for radiation protection ("the patient-shielding report") and the ultrasound observations ("the ultrasound report"). Disselkamp was able to obtain a copy of the July ultrasound report, and she asked another employee to do another random sampling of the July data for the patient-shielding report. When Disselkamp presented this information to Bischoff, Bischoff complained that Disselkamp "recreated" data to support her previously submitted report. Bischoff then met with her supervisor, Norton's System Director of Imaging Services, Richard Schilling, and Norton's Human Resources Manager, Tracy Patton, to discuss her uneasiness over Disselkamp's QMT report.

According to a Corrective Action Report (CAR) created by Bischoff following the meeting with Schilling and Patton, Disselkamp was found to have knowingly presented false data in her QMT report because she submitted the report without having all the data needed to validate it. The CAR stated that this behavior could not be tolerated because the QMT reports affected patient care and were disseminated to organizations responsible for accrediting and regulating health-care providers. Disselkamp provided a written response denying the accusation, claiming that she reviewed the patient-shielding and ultrasound reports before submitting the QMT report and was simply unable to locate them when they were requested. Disselkamp explained that she suspected her copy of the patient-shielding report was misplaced while moving into a new office. Norton terminated Disselkamp's employment in October 2012. At the time of her termination, Disselkamp was 60 years old, had over 30 years’ experience in radiology and mammography

, and had over seven years’ management experience. Disselkamp provided evidence that Norton eventually replaced her with a 48-year-old woman, Michele Meyers.

In February 2013, Disselkamp sent a demand letter to Norton stating her legal claims against Norton. And the following month, she sued Norton for age discrimination in violation of the Kentucky Civil Rights Act³ and for retaliation under the theory that she was terminated for complaining about her former supervisor's, Hendrickson's, behavior before he was replaced by Bischoff.

Throughout pretrial discovery, Disselkamp made repeated requests for certain documents from Norton, seeking disclosure of such things as any emails referencing the CAR created for Disselkamp's alleged misconduct and Disselkamp's QMT binder. Norton eventually conceded that it could not find some of the requested documents and admitted that many of them had been destroyed. The protracted delay in Norton's response and the ultimate unavailability of these documents prompted a motion from Disselkamp for a missing-evidence jury instruction at trial. The trial court denied this motion. After the trial court denied Norton's motion for summary judgment, finding issues of material fact concerning, among other things, whether Disselkamp was replaced by a substantially younger employee, Disselkamp's case was tried before a jury over a ten-day period.

III. THE JURY TRIAL IN CIRCUIT COURT RESULTS IN A VERDICT FOR NORTON.

Disselkamp and Norton each called several witnesses to testify about the facts and events that occurred before and after Disselkamp's termination. Several current and former employees of Norton also testified regarding the alleged discrimination they experienced or observed while working for Norton; including Pam McGinnis, 64-year-old Barbara Colvin, 57-year-old Lee Ann Neuman, 51-year-old Denise Dusch, 56-year-old Connie Hicks, 54-year-old Donna Magee, and 58-year-old Patrick Anderson.

Colvin, another imaging supervisor at Norton who eventually left Norton after Disselkamp was terminated, testified that Bischoff asked her to clean out Disselkamp's office and throw away her QMT binder but that she ignored the instruction and kept the binder in her office, believing Disselkamp might need the binder if a lawsuit occurred. Before Colvin left Norton in 2014, she admonished several other employees not to throw Disselkamp's binder away when they cleared out Colvin's office.

Pam McGinnis, a nurse who worked under Disselkamp's supervision, testified at length about: the culture in the imaging department at Norton; alleged comments made and behaviors exhibited by Hendrickson to female employees; alleged comments made by Bischoff and Schilling vowing to retaliate against Disselkamp for complaining about Hendrickson's harassing behavior; and alleged comments made by Schilling to McGinnis regarding his disappointment and anger that McGinnis complained about Hendrickson's harassing behavior. McGinnis also testified that Bischoff told her that Bischoff would have to "find a reason" to terminate Disselkamp, as Bischoff was directed to do so, and that it was supposed to have been done by Hendrickson. When asked by Norton why she did not mention during her discovery deposition that Bischoff informed her that she had to find a reason to fire Disselkamp, McGinnis stated that she was not asked such a question, and that she was only instructed to answer truthfully the questions she was asked and not to elaborate. When Norton asked if there was any other information she was withholding, McGinnis testified that there was "probably" a lot more information to which she could testify, but she was not asked at her deposition. McGinnis was not asked during re-direct to elaborate on this statement. The trial court then released McGinnis as a witness.

When trial resumed the morning after McGinnis testified, Disselkamp informed the trial court that McGinnis called Disselkamp over the evening recess and told her that she had more pertinent information to offer about Bischoff's alleged discriminatory conduct against Disselkamp but that she did not get the chance to relate that information in her testimony the preceding day because the lawyers did not ask her the right questions. The additional information concerned an alleged meeting McGinnis attended during which Bischoff discussed a plan to bring in "new, young, fresh faces" and terminate older employees, including Hicks, Neuman, Colvin, and Disselkamp, the latter two of which were supposed to have been terminated by Hendrickson before he left Norton. The trial court found that the phone call between Disselkamp and McGinnis, initiated by McGinnis, did not violate any court order or admonition and granted permission to Disselkamp's attorney permission to speak directly with McGinnis.⁴

Bischoff testified, among other things, that: she did not terminate anyone because of age, nor was she directed by anyone to do so; she did not delete any email she received from Disselkamp and did not know why Norton could not produce the emails during discovery; and Norton created an addendum to the 2012 third-quarter QMT report noting that it had performed a new random sampling of the July 2012 data and that the data from the new random sampling did not change the underlying results of the QMT report created by Disselkamp.

Following Bischoff's testimony, the court had further discussions with counsel about whether Disselkamp would be permitted to recall McGinnis as a witness. The trial court...