Norton Healthcare, Inc. v. Deng
2016 Ky. LEXIS 116
Ky.2016Background
- Aker, a Sudanese immigrant, worked for Norton from 2002 until administrative leave and effective termination in late 2007 after an internal grievance downgraded alleged threats from Level I to Level II and recommended counseling and reassignment.
- Norton allowed Aker to apply internally during leave (he applied unsuccessfully for three positions) and then terminated his employment when the internal window closed; he did not later apply as an external candidate.
- Aker filed a pro se racial discrimination suit on February 27, 2008. Shortly thereafter, his attorney Sherman called Norton’s Assistant General Counsel Powell, who allegedly said Norton would not consider Aker for future employment because he sued.
- Aker later amended his complaint asserting (inter alia) a post-termination retaliation claim under the Kentucky Civil Rights Act (KCRA) based on Norton’s alleged refusal to rehire him after he filed suit.
- The trial court granted Norton summary judgment. The Court of Appeals affirmed most rulings but reversed as to the post-termination retaliation claim, invoking the futile-gesture doctrine to excuse Aker’s failure to apply for post-termination positions. The Kentucky Supreme Court granted discretionary review.
- The Kentucky Supreme Court reversed the Court of Appeals on the post-termination retaliation claim, holding the appellate court erred by raising the futile-gesture theory sua sponte, admitting the Powell–Sherman call, but finding Aker failed to prove a prima facie retaliation claim (no adverse employment action and no identified vacancy he sought).
Issues
| Issue | Plaintiff's Argument (Aker) | Defendant's Argument (Norton) | Held |
|---|---|---|---|
| Whether appellate court properly invoked the futile-gesture doctrine sua sponte to excuse Aker’s failure to apply | Aker claimed evidence (Powell’s statement) showed applying would be futile; hence he satisfied adverse-action without applying | Norton argued futility was never raised below and cannot be injected for the first time on appeal | Court: Court of Appeals erred; appellate court may not raise new legal theories sua sponte—issue not preserved for review |
| Whether KRE 408 bars admission of Powell–Sherman conversation | Aker: call is admissible and shows retaliatory refusal to consider rehire | Norton: call was part of settlement/compromise negotiations and inadmissible under KRE 408 | Court: KRE 408 does not bar the call here—Sherman was verbalizing demands, not engaging in settlement negotiations |
| Whether Aker established a prima facie post-termination retaliation claim under KCRA (adverse action element) | Aker: Powell’s statement refusing to consider him for rehire after he sued is an adverse employment action/retaliation | Norton: Aker was already terminated; he failed to apply or identify a particular vacancy; no adverse employment action occurred | Court: Aker failed to show an adverse action or identify a specific position; summary judgment for Norton reinstated |
Key Cases Cited
- Wanger v. G.A. Gray Co., 872 F.2d 142 (6th Cir. 1989) (recognizes futility exception to formal application requirement)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (adverse-action standard requires material adversity that might dissuade a reasonable worker)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (framework for burden-shifting in discrimination cases)
- Brooks v. Lexington–Fayette Urban Cnty. Hous. Auth., 132 S.W.3d 790 (Ky. 2004) (KCRA claims analyzed with federal analogues)
- Fischer v. Fischer, 348 S.W.3d 582 (Ky. 2011) (preservation rule: new theories cannot be raised first on appeal)
- Ten Broeck DuPont, Inc. v. Brooks, 283 S.W.3d 705 (Ky. 2009) (appellate review principles; affirmance can rest on any correct ground in record)