Opinion
NO. 2016-CA-000322-MR
05-04-2018
DONNA DISSELKAMP APPELLANT v. NORTON HEALTHCARE, INC. APPELLEE
BRIEFS FOR APPELLANT: Robert W. "Joe" Bishop John S. Friend Tyler Z. Korus Louisville, Kentucky BRIEF FOR APPELLEE: Donna King Perry Robert C. Rives IV Jeremy S. Rogers Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 13-CI-001418 OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: DIXON, NICKELL, AND THOMPSON, JUDGES. NICKELL, JUDGE: Donna Disselkamp appeals from the Jefferson Circuit Court's judgment, entered March 1, 2016, memorializing an adverse verdict following a jury trial on her claims of age discrimination and retaliation. Consistent with the jury's verdict, judgment was entered in favor of Norton Healthcare, Inc., d/b/a Norton Suburban Hospital ("Norton"). Following a careful review of the voluminous record, the briefs, and the law, we affirm in part, reverse in part and remand.
BACKGROUND
Disselkamp began working for Norton in 2002 as supervisor of Imaging Services. Her responsibilities included preparation of reports relating to radiology, known as Quality Management Team ("QMT") reports. To prepare these reports, Disselkamp collected data from records created during patient procedures each month and randomly sampled the data to determine if Norton employees were upholding policy requirements. Disselkamp maintained a "QMT binder" with the data needed to create her monthly and quarterly reports.
In 2012, Lori Bischoff replaced Kevin Hendrickson as Disselkamp's immediate supervisor. After Disselkamp emailed Bischoff her QMT report for the third quarter of 2012, Bischoff requested the supporting data. Although Disselkamp emailed Bischoff most of the data used to create the QMT report, Bischoff asked why reports for patient shielding for radiation protection ("the patient shielding report") and ultrasound observations ("the ultrasound report") for July of 2012 were missing. Disselkamp then obtained a copy of the ultrasound report and asked a different employee to do another random sampling of the July 2012 data for patient shielding. Disselkamp presented this information to Bischoff, who complained Disselkamp "recreated" data to support her previously submitted report.
Bischoff then met with Richard Schilling, Norton's System Director of Imaging Services, and Tracy Patton, Norton's Human Resources Manager, about the matter. According to a Corrective Action Record ("CAR") Bischoff created after consulting with Schilling and Patton, it was decided Disselkamp 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 this behavior could not be tolerated because the data in the QMT reports affected patient care and was provided to accrediting and regulating organizations.
Disselkamp denied providing falsified data, claiming she reviewed the patient shielding and ultrasound reports before submitting her QMT report but simply could not locate them when they were requested. Disselkamp believed her copies of the patient shielding and ultrasound reports had been misplaced while moving into a new office. Norton apparently found Disselkamp's explanation wanting and she was terminated in October 2012. She was sixty years old at the time.
Norton eventually replaced Disselkamp with Michele Meyers who was forty-eight years old. In March 2013, Disselkamp filed suit for age discrimination in violation of the Kentucky Civil Rights Act, KRS 344.010 et seq. She also made a claim for retaliation under the theory she was terminated for complaining about Hendrickson's behavior before he was replaced by Bischoff.
Kentucky Revised Statutes.
Norton eventually moved for summary judgment. The trial court denied the motion, finding issues of material fact existed concerning, amongst other things, whether Disselkamp was replaced by a significantly younger employee. Her case was then tried before a jury over a ten-day period.
Testimony was given concerning the above facts and events occurring after Disselkamp's termination. Bischoff testified Norton created an addendum to the 2012 third quarter QMT report noting it had performed a new random sampling of the July 2012 data. The data from the new random sampling did not change the underlying results of the QMT report Disselkamp initially provided. Bischoff denied deleting any email she received from Disselkamp and could not provide any reason why Norton could not produce the emails during discovery.
Barbara Colvin, another imaging supervisor at Norton, testified Bischoff asked her to clear out Disselkamp's office and throw away her QMT binder. Believing Disselkamp may need the binder in a subsequent lawsuit, Colvin ignored Bischoff's instruction and placed the binder on a shelf in her own office where it remained until Colvin left Norton in November 2014. Before leaving Norton's premises for the final time, Colvin told at least three other employees not to throw away Disselkamp's binder when clearing out her office. Colvin could not conceive of any reason Norton could not produce Disselkamp's QMT binder during discovery.
The jury also heard testimony from Pam McGinnis, a nurse who had worked under Disselkamp's supervision. Over a two-day period, McGinnis was subjected to direct examination, cross-examination, re-direct examination, and recross-examination. During direct, she testified at length about the culture in the department and comments Hendrickson and Schilling allegedly made vowing to retaliate against Disselkamp for complaining about Hendrickson's harassing behavior. McGinnis also testified Bischoff told her—following Hendrickson's termination—she was "going through a lot with Rich Schilling" and feared she would be forced to fire Disselkamp. When asked if Bischoff ever gave her a reason for firing Disselkamp, McGinnis testified Bischoff told her "it was supposed to have been done by Kevin [Hendrickson]" and "in time" Bischoff would have to "find the reason" to terminate Disselkamp.
McGinnis was asked on cross-examination why she neglected to mention during her deposition Bischoff told her she had to find reasons to fire Disselkamp. McGinnis responded she was never asked such a question. When asked if there was any other information she was withholding, McGinnis testified there was "probably . . . a lot" more information she could give which was not elicited during her deposition. She was not asked to expound on this statement during re-direct or recross-examination. McGinnis was then released as a witness.
The following morning, Disselkamp, through counsel, informed the trial court McGinnis called her the previous evening and disclosed she had pertinent information which was not brought out during her trial testimony. This additional information allegedly concerned a meeting McGinnis attended in which Bischoff discussed a plot to terminate older employees. The trial court denied Disselkamp's request to recall McGinnis, agreeing with Norton it would be unfair to allow a party who had been deposed and examined at length to retake the stand after conferring privately with the plaintiff. However, the trial court allowed McGinnis to give the following avowal testimony,
The trial court found the phone call between Disselkamp and McGinnis did not violate any court order or admonition.
Plaintiff's Counsel: What kind of conversation did you have [with Bischoff]?
McGinnis: I think close to one of our last conversations was when there was discussions over firing people. There were people's names being brought up, they were looking to fire, they were discussing what they are going to try to fire them over, and I knew that it wasn't the truth, and I just asked to be excused, and I no longer wanted to be Charge Nurse in that area and I wanted to pull myself out of anything I had to do with being part of the meetings, the discussion, the decisions, until I could make my way somewhere else to work.
Plaintiff's Counsel: This is while you were still at Suburban?
McGinnis: Yeah.
Plaintiff's Counsel: Who did they say they wanted to fire and get rid of?
McGinnis: We met a few different times. Donna [Disselkamp]'s name was mentioned, Barb [Colvin]'s name was mentioned, Connie Hicks' name was mentioned, there was, I can't think of her last name right now, Lee Ann was mentioned, a gentleman named Derrick was mentioned.
Plaintiff's Counsel: And who was the "we" in these meetings you're talking about, by the way?
McGinnis: They were mostly with Lori, Jessie Stivers, and Brooke Ruffra.
Plaintiff's Counsel: Okay. Did anyone say why they wanted to get rid of these folks?
McGinnis: [Bischoff] had said that she had to get rid of [Disselkamp] and Barb because that was supposed to have been done through [Hendrickson], and since it wasn't she had to carry that out, she said that I had made that difficult 'cause I had said something to [Disselkamp] and Barb originally when Kevin was there.
Plaintiff's Counsel: Real quick, who, [Bischoff] was saying that she was supposed to get rid of [Disselkamp] and Barb, is that what she was saying?
McGinnis: Yes.
Plaintiff's Counsel: Did she say who was telling her to do that? Or was that her idea?
McGinnis: She said Schilling told her, and then she asked Jessie and Brooke, you know, since they were in charge, you know, who is it they would like to get rid of cause they were going to clean house and bring some new young fresh faces in.The trial court then declined Disselkamp's request to revisit its previous ruling and her case-in-chief continued. The jury ultimately returned a verdict in Norton's favor on both of Disselkamp's claims. This appeal followed.
Plaintiff's Counsel: New young fresh faces, is that what you just said?
McGinnis: Yes.
Plaintiff's Counsel: Who said that?
McGinnis: Lori [Bischoff].
ANALYSIS
Disselkamp argues the trial court abused its discretion by refusing to allow McGinnis to be recalled and by refusing to provide a missing evidence instruction. She also argues the trial court's jury instructions misstated the law on age-discrimination and retaliation. We agree the trial court's instruction on the age-discrimination claim misstated the law and reverse its judgment as to that count. We otherwise find no error and affirm the trial court's judgment on Disselkamp's retaliation claim.
I. Refusing to Allow Party to Recall Excused Witness
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Clephas v. Garlock, Inc., 168 S.W.3d 389, 393 (Ky. App. 2004). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). "An abuse of discretion exists only when we are 'firmly convinced that a mistake has been made.'" Rossi v. CSX Transp., Inc., 357 S.W.3d 510, 515 (Ky. App. 2010) (quoting Overstreet v. Overstreet, 144 S.W.3d 834, 838 (Ky. App. 2003)). "Even then, reversal is unwarranted unless the error is not harmless; that is, unless corrected, the error would prejudice the substantial rights of a party." Id.
KRE 611(a) is the operative rule when reviewing a trial court's decision to allow a witness to be recalled. Metcalf v. Commonwealth, 158 S.W.3d 740, 748-49 (Ky. 2005). See also United States v. Maddox, 944 F.2d 1223, 1229-30 (6th Cir. 1991) (noting Federal Rule of Evidence 611 governs when reviewing a trial court's decision to allow a witness to retake the stand). KRE 611(a) provides,
Kentucky Rules of Evidence.
[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the ascertainment of the truth;
(2) Avoid needless consumption of time; andDisselkamp argues evidence should not be excluded to advance the policies set out in KRE 611(a) unless the evidence would be inadmissible under KRE 403. That is, its probative value would be "substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury[.]" In support of this argument, she cites Metropolitan Property & Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31 (Ky. 2003), and United States v. Colomb, 419 F.3d 292 (5th Cir. 2005). After a careful review, we find neither case applicable to the issue sub judice.
(3) Protect witnesses from harassment or undue embarrassment.
In Overstreet, the Supreme Court of Kentucky held the income a witness earns serving as an expert witness is admissible at trial and "the extent to which it may be used for impeachment purposes at trial is within the sound discretion of the trial judge exercised pursuant to KRE 403 and KRE 611." 103 S.W.3d at 44. A trial court's discretion in prohibiting witnesses from being recalled was not an issue in the case.
In Colomb, the prosecution notified the defense two weeks before trial of its intention to call sixteen newly discovered witnesses, most of whom had contacted the government from prison and offered to testify to information they had concerning the defendants' alleged offenses. 419 F.3d at 294. Without considering the anticipated testimony, the trial court elected to exclude these witnesses based on its authority under the federal counterpart to KRE 611. Id. at 294-95. The Fifth Circuit subsequently held the trial court abused its discretion by prohibiting any of the new witnesses from testifying. Id. at 298. As it explained,
[a]lthough decisions that a court makes under Rule 611 may indirectly affect whether proof is admitted, the Rule does not provide an independent ground for excluding otherwise-admissible evidence. Thus, the key to understanding the scope of Rule 611 is that it affects admissibility only as an incident to regulating mode and order; the provision itself creates no standards for admissibility. Where a court excludes evidence to advance the policies specifically described in subdivision (a), it is Rule 403 and not Rule 611 that supplies the power for that action.Id. at 297 (internal quotation marks and citations omitted).
Although the above passage, cited out of context, may appear favorable to Disselkamp, Colomb involved a pre-trial decision to wholly exclude potential witnesses without considering their potential testimony. The issue sub judice involves the trial court's refusal to allow a witness to retake the stand. Unless the trial court concludes the anticipated testimony would not be probative, any ruling prohibiting a witness from being recalled involves the exclusion of potentially relevant evidence. It is therefore axiomatic a trial court's discretion in prohibiting a witness from retaking the stand extends beyond merely determining whether the anticipated testimony would have initially withstood KRE 403 balancing.
We hold the trial court's discretion in controlling the mode and order of interrogating witnesses—to make it effective for ascertainment of truth and avoid needless consumption of time—is broad enough to refuse a party's requests to recall a witness under the circumstances of this case. Knowledge of Bischoff's alleged conspiracy to "clean house" of older employees was acquired only after McGinnis privately contacted Disselkamp as trial was well underway. Evidence presented to the jury under such circumstances is, at best, against the spirit of rules designed to prevent witnesses from coordinating their testimony. See Conyers v. Commonwealth, 530 S.W.3d 413, 429 (Ky. 2017).
This evidence was not otherwise unobtainable. Disselkamp had an opportunity to question McGinnis during a discovery deposition. An obviously pertinent question to ask McGinnis would have been if she knew if anyone responsible for Disselkamp's termination showed animus towards older employees. When called during Disselkamp's case-in-chief, McGinnis freely admitted providing information she had not given during her deposition. On cross-examination, McGinnis even stated she had "a lot" more information she could give concerning Disselkamp's termination, but Disselkamp failed to follow up on this comment during re-direct.
The rules of evidence do not give a litigant the right to recall witnesses at will. Yet Disselkamp's argument, taken to its logical conclusion, would force the trial court to allow every witness to retake the stand after being released, regardless of the circumstances, so long as the anticipated testimony passed the threshold for admissibility under KRE 403. This would severely curtail the trial court's authority to control the mode and order of interrogation of witnesses. A better solution is to place the burden on the party's counsel to ask the appropriate questions in discovery and during the witness's initial testimony.
We believe our decision is bolstered by looking to the approach used in the Sixth Circuit, which reviews a trial court's decision permitting a witness to be recalled by examining the following factors: "the party's explanation for failing to introduce the evidence earlier, the admissibility of the evidence, its relevance, and the degree to which the opposing party would be prejudiced by reopening the case." United States v. Fields, 763 F.3d 443, 465 (6th Cir. 2014) (quoting United States v. Wilson, 27 F.3d 1126, 1129 (6th Cir. 1994)). Although the second and third factors may tilt in Disselkamp's favor, the first factor weighs heavily against her. Had the federal approach been applied in this case, we are confident no abuse of discretion would be found.
We are mindful the "law of evidence tilts heavily toward admission over exclusion[.]" Tuttle v. Perry, 82 S.W.3d 920, 922 (Ky. 2002). We are also aware the Supreme Court of Kentucky, when addressing suspected coordinated testimony among witnesses, has explained the "best course is to allow the testimony subject to proper impeachment on cross examination." Conyers, 530 S.W.3d at 430 (quoting Woodard v. Commonwealth, 219 S.W.3d 723 (Ky. 2007) overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d 393 (Ky. 2010)). But the issue is not whether we believe the trial court took the best course. The issue is whether the trial court's decision to deny Disselkamp's request to recall McGinnis was an abuse of its discretion. Given the circumstances of this case, and the trial court's authority to control the interrogation of witnesses, we hold it was not.
II. Lack of Missing Evidence Instruction.
Disselkamp argues Norton's failure to produce her QMT binder and emails she exchanged with Bischoff prejudiced her ability to refute the allegation she knowingly falsified data. She contends the trial testimony and Norton's response to a discovery request stating the requested emails were no longer available due to its "reasonable and necessary information purge procedures" showed it failed to preserve this evidence in bad faith; therefore, the trial court abused its discretion by refusing to give a missing evidence instruction. After reviewing the record and applicable law, we discern no error.
Norton argues Disselkamp failed to preserve this issue because the jury instructions she tendered prior to trial did not contain a missing evidence instruction. A review of the record shows Disselkamp requested a missing evidence instruction in an unsuccessful motion for sanctions. She also asked the trial court to reconsider this issue in a jury instruction conference conducted pursuant to Kentucky Rule of Civil Procedure ("CR") 51(2). The issue was preserved for appellate review. See CR 51(3).
A trial court may give a missing evidence instruction when "it may be reasonably believed that material evidence within the exclusive possession and control of a party, or its agents or employees, was lost without explanation or is otherwise unaccountably missing[.]" University Medical Center, Inc. v. Beglin, 375 S.W.3d 783, 792 (Ky. 2011). Under a missing evidence instruction, the jury "may find that the evidence was intentionally and in bad faith destroyed or concealed by the party possessing it and that the evidence, if available, would be adverse to that party or favorable to his opponent." Id. There is no special rule for measuring the quantum or quality of evidence necessary to support a missing evidence instruction. Id. at 790. A trial court should use "normal inferences and suppositions" when determining whether to admit missing evidence testimony or give a corresponding instruction. Id.
We review a trial court's decision to give a missing evidence instruction for an abuse of discretion. Id. However, the instruction should not be given if the proof shows the evidence was lost as a result of "mere negligence[,]" destroyed "in the normal course of file maintenance," or if there is an "adequate explanation" for the loss. Id. at 791.
In this case, the only attempt to preserve the QMT binder was Colvin's request that it not be thrown away. Disselkamp has not directed us to evidence Norton had formal procedures for keeping or maintaining a former employee's QMT binder. We cannot conclude the binder was unaccountably missing under such circumstances. Regarding the requested emails, Norton claimed they were unavailable because of reasonable and necessary purge procedures. Thus, there was evidence the allegedly missing evidence was lost because of mere negligence or destroyed in the course of normal file maintenance. Under these circumstances, the trial court's refusal to give a missing evidence instruction was not an abuse of discretion.
Even if a missing evidence instruction would have been permissible in this case, its absence was harmless. It is undisputed Disselkamp could not produce the patient shielding or ultrasound reports when requested, and Bischoff testified a resampling of this data yielded the same results Disselkamp reported. Thus, the jury heard evidence Disselkamp presented accurate data but simply could not locate it when it was requested. Disselkamp's theory, asserting Bischoff misrepresented her actions to provide pretext for discrimination and retaliation, was not prejudiced by Norton's failure to produce the requested evidence.
III. Age Discrimination Instruction
The trial court provided the following jury instruction on age discrimination:
In this lawsuit, Plaintiff Donna Disselkamp ("Disselkamp") contends that her employment at Norton Suburban Hospital ("Norton") was terminated unlawfully.
You shall find for Disselkamp if you are satisfied by a preponderance of evidence all of the following:
• Disselkamp's employment was terminated;
• Disselkamp was age 40 or over on the date of termination;
• Disselkamp's age (60) was a substantial motivating factor in Norton's decision to terminate her employment;
• Disselkamp was otherwise qualified for her employment position;
AND
• Disselkamp was replaced by a substantially younger person.
Disselkamp argues the above instruction was inconsistent with Kentucky's "bare bones" approach to jury instructions and misstated the law on age discrimination to her prejudice. Specifically, it permitted the jury to find age was a motivating factor in Norton's decision to terminate her but Norton was not liable unless the jury also found Disselkamp's successor was "substantially younger," a term that was undefined. Norton argues the trial court's ruling there was an issue of material fact whether Disselkamp was replaced by someone significantly younger made it a question for the jury. We agree with Disselkamp the above instruction misstates the law on age discrimination and reverse on that count."Substantial Motivating Factor" means a factor that played a part in the decision. It need not be the sole, exclusive, or even primary factor in the decision, it simply must be a substantial factor.
The content of jury instructions is an issue of law subject to de novo review. Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015). Under Kentucky's "bare bones" approach, a jury instruction should state only "what the jury must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof." Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 228 (Ky. 2005) (quoting Kurt A. Philips, Jr. 7 Kentucky Practice: Rules of Civil Procedure Annotated, § 51 (5th ed. 1995)). It is therefore inappropriate to explain evidentiary presumptions to the jury. Mason v. Commonwealth, 565 S.W.2d 140, 140 (Ky. 1978). "Presumptions are in the nature of guides to be followed by the trial judge in determining whether there is sufficient evidence to warrant the submission of an issue to the jury, and should not be included in the instruction." Id. at 141.
A failure to provide bare bones instructions does not, in itself, require reversal. Id. "The question to be considered on an appeal of an allegedly erroneous instruction is whether the instruction misstated the law." Wilkey, 173 S.W.3d at 229 (emphasis added). But once the instruction is found to be erroneous, it is presumed to be prejudicial. McKinney v. Heisel, 947 S.W.2d 32, 35 (Ky. 1997). "[A]n appellee claiming harmless error bears the burden of showing affirmatively that no prejudice resulted from the error." Id.
The applicable law for Disselkamp's discrimination claim is KRS 344.040, which makes it unlawful for an employer to discharge or discriminate against an individual because the person is over the age of forty. Civil rights provisions of KRS Chapter 344 are interpreted consistently with applicable federal anti-discrimination laws. Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005). Age discrimination cases are analyzed under the same framework as employment discrimination cases under Title VII of the Federal Civil Rights Act. Id.
The factual inquiry in a Title VII case is whether the defendant intentionally discriminated against the plaintiff. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). There are two ways for a plaintiff to establish the defendant intentionally engaged in discrimination. Williams, 184 S.W.3d at 495. One way consists of direct evidence of the defendant's discriminatory animus. Id. If the plaintiff cannot produce direct evidence of discrimination, then he or she can prove discrimination though circumstantial evidence by satisfying the burden-shifting test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 794, 93 S.Ct. 1817, 1820, 36 L.Ed. 2d 668 (1973). Id. at 495-96.
Under the McDonnell Douglas framework, a plaintiff relying on circumstantial evidence to prove unlawful age discrimination must first establish a prima facie case. Id. at 496. The plaintiff makes a prima facie case by showing he or she "(1) was a member of a protected class; (2) was discharged; (3) was qualified for the position from which he [or she] was discharged; and (4) received disparate treatment from a similarly situated younger person or was replaced by a significantly younger person." Flock v. Brown-Forman Corp., 344 S.W.3d 111, 114 (Ky. App. 2010) (internal citation omitted).
"[T]he entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that direct evidence of intentional discrimination is hard to come by." Williams, 184 S.W.3d at 495 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S.Ct. 1775, 1802, 104 L.Ed.2d 268 (1989) (O'Connor, J. concurring)). It allows a plaintiff to prove her case through "inferential and circumstantial proof." Id. at 495. Thus, Disselkamp, whose age-discrimination case depends on circumstantial or inferential proof, must show her replacement was significantly younger before her case can go to a jury because "[i]n the age-discrimination context, such an inference cannot be drawn from the replacement of one worker with another worker insignificantly younger[.]" O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996).
Neither the United States Supreme Court nor the Supreme Court of Kentucky has defined how much younger a replacement must be to qualify as "significantly" or "substantially" younger in the age-discrimination context. Most Federal Circuit Courts of Appeals have declined to adopt a bright-line rule on the issue. Grosjean, 349 F.3d at 339-40 (collecting cases and holding eight years can be a significant age difference). However, a difference of ten years or more has generally been considered significant. See, e.g., Williams, 184 S.W.3d at 496 (sufficient evidence to support prima facie case when evidence showed next sixteen hires were at least eight years younger than plaintiff); Hartley, 124 F.3d at 893 (ten-year difference in age between plaintiff and replacement presumptively substantial); France v. Johnson, 795 F.3d 1170, 1174 (9th Cir. 2015) (same).
Some courts state the replacement should be "significantly" younger while other jurisdictions state the age difference should be "substantial." Compare Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003), with Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997). The difference in wording does not change the analysis.
Norton argues the lack of a bright-line rule defining when the age difference between a plaintiff and her replacement is significant makes it, in certain cases at least, a question of fact the jury must answer. This argument misconstrues the purpose of the prima facie case.
"The prima facie case is not the final inquiry, but rather the first prong of analysis which defeats a motion for dismissal prior to trial." E.E.O.C. v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997). After the plaintiff establishes a prima facie case, a "legally mandatory, rebuttable presumption" of illegal discrimination arises. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 n.7, 101 S.Ct. 1089, 1094 n.7, 67 L.Ed.2d 207 (1981). The employer must then produce evidence of a "legitimate, non-discriminatory reason" for terminating the plaintiff to survive a directed verdict. Brooks v. Lexington-Fayette Urban County Housing Authority, 132 S.W.3d 790, 797 (Ky. 2004). "But when the defendant fails to persuade the [trial] court to dismiss the action for lack of a prima facie case, and responds to the plaintiff's proof by offering evidence of the reason for the plaintiff's [termination]," the McDonnell Douglas presumption "drops from the case[.]" Aikens, 460 U.S. 711 at 714-15, 103 S.Ct. at 1481 (footnote omitted). The fact finder must then decide whether the termination was discriminatory. Id. That is, the plaintiff's protected status was a "substantial factor" motivating the defendant's decision to terminate the plaintiff. Mendez v. University of Kentucky Bd. of Trustees, 357 S.W.3d 534, 541 (Ky. App. 2011) (quoting Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 823-24 (Ky. 1992)).
Thus, aspects of a prima facie case are part of an evidentiary presumption to be considered by a judge when deciding whether there is sufficient evidence for the jury to decide the ultimate question—whether the defendant intentionally discriminated against the plaintiff. See Avery Dennison Corp., 104 F.3d at 860-61 ("the court should have drawn appropriate reasonable inferences and ruled on whether or not a prima facie case had been made, reserving for trial only the ultimate issue of discrimination"). Accordingly, whether the age difference between Disselkamp and her replacement was "substantial" was a legal question for the trial court. The lack of a bright-line rule to answer this legal question does not make it a question of fact to be decided by the jury. Rather, the answer to this question of law depends on the circumstances of each case.
Norton ignores the above authority and instead directs us to the following passage from the Sixth Circuit's opinion in Cicero v. Borg-Warner Auto, Inc.:
[h]ere, Cicero was fifty-one at the time of his firing. His replacement was forty-three. A question of fact remains for a fact finder to resolve whether, under the circumstances of the present case, the seven and one-half year age difference satisfies the fourth prong of Cicero's prima facie case.280 F.3d 579, 588 (6th Cir. 2002). Norton cites Cicero as supporting its argument a jury should decide whether the age difference between the plaintiff and a replacement is significant. This argument does not withstand scrutiny. Cicero involved an appeal of a trial court's order granting summary judgment. Id. at 851. A close reading of Cicero makes clear the Sixth Circuit's holding was the evidence regarding the plaintiff's prima facie case, although disputed by the employer, was sufficient for his discrimination claim to go to trial. Cicero provides no guidance on the language to be used in a jury instruction.
In this case, the trial court's instruction on Disselkamp's age-discrimination claim not only failed the bare bones test, it misstated the law. Under the McDonnell Douglas framework, there is only one question for the jury once an age-discrimination claim has survived a motion for summary judgment or directed verdict: whether the defendant terminated the plaintiff because of her age. However, the trial court's age-discrimination instruction asked the jury to answer additional questions. In particular, whether it believed the age difference between Disselkamp and her replacement was "substantial." Thus, the instruction misstated what the jury had to believe from the evidence to return a verdict in Disselkamp's favor.
Doing so was prejudicial in this case. There was evidence Disselkamp was replaced by Meyers, who was twelve years her junior. There is no authority in Kentucky, or any jurisdiction of which we are aware, holding a twelve-year age difference cannot be significant or substantial in the age-discrimination context. However, under the trial court's instruction on the age-discrimination claim, jurors could find Norton terminated Disselkamp because of her age, but still find in Norton's favor because they believed this twelve-year age difference was not substantial. There is no way for this Court to determine if the jury found the age difference between Disselkamp and Meyers was not substantial. Thus, it is impossible for this Court to determine if the verdict was based on the jury finding in Norton's favor on the relevant factual inquiry—whether Norton terminated Disselkamp because of her age—or a mistaken view of the law that a plaintiff cannot prevail when her replacement was only twelve years younger. Therefore, it was prejudicial and the jury's verdict on this claim must be reversed.
The Sixth Circuit has observed it is "normally inappropriate" to instruct on the McDonnell Douglas burden-shifting test, but "seldom is it held to be reversible error for a trial court to do so as long as the instruction summarizes the law accurately." Brown v. Packaging Corp. of America, 338 F.3d 586, 593 (6th Cir. 2003) (emphasis added). However, the instruction in this case misstated the law. Norton has not cited any case in which a similarly erroneous instruction was held to be harmless error.
We note Norton's citation to Childers Oil Co., Inc. v. Adkins, 2005-CA-001967-MR, 2006 WL 3524521 (Ky. App. Dec. 8, 2006) rev'd, 256 S.W.3d 19 (Ky. 2008), an unpublished opinion by a different panel of this Court, as example of a proper instruction on an age-discrimination claim. In Childers Oil, the appellant argued the trial court erred by failing to enter a directed verdict on the plaintiff's age-discrimination claim and instructing the jury on punitive damages. Id. at *4-5. Although we cited the jury instructions when addressing the directed verdict issue, neither party argued the instructions were erroneous. Id. at *4. Moreover, the Supreme Court of Kentucky subsequently granted discretionary review and affirmed our holding that the trial court correctly denied the defendant's motion for a directed verdict but reversed, deeming an instruction on punitive damages not to be palpable error. Childers Oil Co., Inc. v. Adkins, 256 S.W.3d 19 (Ky. 2008). Using our opinion in Childers Oil as authority for determining how to instruct a jury on an age-discrimination claim would be inappropriate.
On remand, the following jury instruction would be appropriate on Disselkamp's age-discrimination claim:
You will find for the Plaintiff under this instruction if you are satisfied from the evidence her age was a substantial and motivating factor in Defendant's decision to take adverse employment action against her. Otherwise you will find for Defendant under this instruction.The above instruction is consistent with jury instructions approved in cases in which the plaintiff alleged discrimination because of a status protected under KRS 344.040. Meyers, 840 S.W.2d at 823-24 (gender-based discharge); Mendez, 357 S.W.3d at 542 (religious belief-based discharge).
IV. Retaliation Instruction.
At a jury instruction conference, the trial court proposed a retaliation instruction stating the jury could find in Disselkamp's favor if Bischoff or Schilling, the individuals responsible for her termination, were aware she complained about "harassment and gender discrimination." Disselkamp did not initially object, stating she was "okay" with the instruction. However, she objected when Norton requested Patton be added as an individual responsible for her termination. Disselkamp argued this misstated her case because she did not allege Patton retaliated against her, only that she acted as a mere rubberstamp to Bischoff and Schilling's decision.
The record contains a recording of this conference but we did not locate a copy of the retaliation instruction the trial court proposed. However, Disselkamp does not dispute Norton's claim the trial court's proposed instruction contained the phrase "harassment and gender discrimination." It is the appellant's responsibility to present a complete record to the appellate court. Ray v. Ashland Oil, 389 S.W.3d 140, 145 (Ky. App. 2012). "It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
The trial court subsequently provided the following retaliation instruction to the jury:
[Y]ou shall find for Disselkamp if you are satisfied by a preponderance of evidence all of the following:
• Disselkamp engaged in a protected activity, i.e., complained to Norton, in good faith, about harassment and gender discrimination by Kevin Hendrickson;
• Richard Schilling, Lori Bischoff, or Tracy Patton, the individuals responsible for terminating Disselkamp's employment, were aware of Disselkamp's complaints of harassment and gender discrimination by Kevin Hendrickson at the time the decision was made to terminate Disselkamp's employment;
AND
• There was a causal connection between Disselkamp's termination and her complaints about Kevin Hendrickson.(Emphasis added.) Disselkamp argues the trial court inappropriately commented on the evidence by including Patton's name in the instruction. She also alleges the retaliation instruction misstated the law because it required the jury to find she complained about two separate matters, harassment and gender discrimination. After reviewing the relevant law, we find no error requiring reversal.
The applicable statute for Disselkamp's retaliation claim is KRS 344.280, making it unlawful for an employer to "retaliate or discriminate in any manner" against a person who "has opposed a practice declared unlawful by this chapter [KRS 344.]" Proving retaliation usually requires proof the decision-maker responsible for making the adverse decision was aware of the protected activity when the adverse decision was made. Kentucky Dep't of Corrections v. McCullough, 123 S.W.3d 130, 135 (Ky. 2003).
Inclusion of Patton's name in the retaliation instruction did not misstate the law because use of the word "or" made it unnecessary for the jury to find Patton was aware of Disselkamp's complaints against Hendrickson. It also caused no prejudice because there was testimony Patton participated in the decision to terminate Disselkamp. The contention Patton was a mere rubberstamp who relied on Schilling and Bischoff's advice was a matter to be "fleshed out" during closing arguments. Rogers v. Kasdan, 612 S.W.2d 133, 137 (Ky. 1981).
Furthermore, any error in the retaliation instruction requiring the jury to find Disselkamp complained of "harassment and gender discrimination" was not preserved for appellate review. Under CR 51(3),
[n]o party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.A tendered instruction will not adequately present a party's position on an allegedly erroneous instruction when "the minor differences between the language of the tendered instruction and the instruction given by the trial court would not call the trial court's attention to the alleged error[.]" Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 163-64 (Ky. 2004)
Disselkamp did not object when the trial court offered a retaliation instruction requiring the jury to find she complained of "harassment and gender discrimination." However, she did tender the following instruction prior to trial:
[Y]ou will find for the Plaintiff Donna Disselkamp under this instruction if you are satisfied from the evidence that Donna Disselkamp's complaints about being harassed and/or adversely treated due to her gender were a but for factor in Defendant's decision to terminate her employment. Otherwise, you will find for the Defendant under this instruction.(Emphasis added.) Disselkamp's instruction differed from the trial court's only through use of the term "and/or" instead of "and." Disselkamp has not offered any argument explaining how this was not such a minor difference it would not call the alleged error to the trial court's attention. We are not required to create an argument for her. Even if she did make such an argument, we would hesitate to hold the trial court was sufficiently alerted to the alleged error through "use of the much condemned conjunctive-disjunctive crutch of sloppy thinkers, and/or." Raine v. Drasin, 621 S.W.2d 895, 905 (Ky. 1981) (Lukowsky, J., dissenting) abrogated on other grounds by Martin v. O'Daniel, 507 S.W.3d 1 (Ky. 2016).
Others have been less restrained in their opinion of "and/or." See Employers' Mut. Liability Ins. Co. of Wisconsin v. Tollefsen, 263 N.W. 376, 377 (Wis. 1935) ("It is manifest that we are confronted with the task of first construing 'and/or,' that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of some one [sic] too lazy or too dull to express his precise meaning, or too dull to know what he did mean[.]"). --------
CONCLUSION
Under the circumstances of this case, it was not an abuse of discretion to prohibit McGinnis from retaking the stand or to reject a missing evidence instruction. We also discern no reversible error in the retaliation instruction given and affirm the judgment entered on that count. However, we find the instruction on the age-discrimination claim misstated the law, requiring reversal of the trial court's judgment on that count. The case is remanded to the Jefferson Circuit Court for proceedings consistent with this Opinion.
THOMPSON, JUDGE, CONCURS.
DIXON, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND DOES NOT FILE A SEPARATE OPINION. BRIEFS FOR APPELLANT: Robert W. "Joe" Bishop
John S. Friend
Tyler Z. Korus
Louisville, Kentucky BRIEF FOR APPELLEE: Donna King Perry
Robert C. Rives IV
Jeremy S. Rogers
Louisville, Kentucky