RENDERED: SEPTEMBER 17, 2021; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0328-MR

NORTON HEALTHCARE, INC. APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANNIE O’CONNELL, JUDGE

ACTION NO. 11-CI-006125 

JOYCE TURNER APPELLEE 

AND

NO. 2019-CA-0569-MR

JOYCE TURNER CROSS-APPELLANT 

v. 

CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANNIE O’CONNELL, JUDGE

ACTION NO. 11-CI-006125 

NORTON HEALTHCARE, INC. CROSS-APPELLEE 
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OPINION

REVERSING

**   **  **

BEFORE: LAMBERT, McNEILL, AND TAYLOR, JUDGES.

McNEILL, JUDGE: This is a disability discrimination case filed under the 

Kentucky Civil Rights Act (KCRA), where a Jefferson Circuit Court jury found in 

favor of Appellee, Joyce Turner (Turner). The jury awarded Turner $91,139.59 in 

back pay and $1,000,000.00 for embarrassment, humiliation, and emotional 

distress. Appellant, Norton Healthcare Inc. (Norton), appealed and Turner crossappealed. Norton raises a legal issue concerning Turner’s alleged disability, 

alleges that her evidence at trial was insufficient to establish liability, and, in the 

alternative, that the emotional damages award was excessive. Norton requests that 

we reverse the judgment. For the following reasons, we agree. 

FACTUAL AND PROCEDURAL BACKGROUND

Turner began working as a registered nurse for Norton on December 

16, 2001. She was diagnosed with breast cancer on June 24, 2009. On July 2, 

2009, Turner’s tumor and several lymph nodes were surgically removed. She was 

able to return to work soon thereafter with no restrictions and continued to treat her 

symptoms using chemotherapy from July 2009 through December 2009. Turner 

took a period of paid medical leave between October 2009 and December 2009. 

She returned to work in January of 2010 with no medical restrictions. 
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On January 27, 2010, Turner met with her supervisors Cindy Carr, 

Donna Watkins, and employee relations manager, Nicole Yadon, to discuss 

Turner’s alleged failure to follow required protocols concerning medication 

charting and dispensing that occurred on multiple instances. Turner was placed on 

administrative leave as a result. Ultimately, on February 1, 2010, Norton 

terminated Turner’s employment. Turner filed suit in Jefferson Circuit Court on 

September 19, 2011, asserting three separate causes of action: (1) discrimination 

on the basis of her disability or perceived disability in violation of the KCRA, 

KRS1 344.040 et seq.; (2) discrimination on the basis of age in violation of the 

KCRA; and (3) a claim for punitive damages and intentional infliction of 

emotional distress (IIED). 

On December 20, 2011, the trial court dismissed Turner’s third cause 

of action for punitive damages and IIED. The only issue before this Court 

concerns Turner’s disability discrimination claim, wherein she specifically 

complained that she was fired because of her cancer. Norton denies this allegation, 

instead contending that Turner’s employment was terminated due to her failure to 

properly perform her work duties. Norton specifically asserts that Turner 

committed serious medication charting and administration errors and therefore 

endangered patients. Norton subsequently filed a motion for summary judgment 

 

1 Kentucky Revised Statutes.
-4-

arguing, inter alia, that Turner did not have a qualifying disability under the 

KCRA and that Norton was entitled to a judgment as a matter of law. The motion 

was denied and the case proceeded to trial. 

After the close of Turner’s proof, Norton requested a directed verdict, 

which was denied by the trial court. On June 15, 2018, a Jefferson Circuit Court 

jury found in favor of Turner. As previously stated, the jury awarded Turner 

$91,139.59 in back pay and $1,000,000.00 for embarrassment, humiliation, and 

emotional distress. In a subsequent order, the court reduced the back pay award by 

$6,600.00, which represents the sum Turner received from unemployment 

insurance after her employment with Norton was terminated. Norton then filed a 

motion for a judgment notwithstanding the verdict (JNOV),

2 motion for a new trial, 

and a motion to alter, amend, or vacate the judgment under CR3 59.05, which were 

denied by the trial court. Norton appealed to this Court as a matter of right 

contesting those post-trial orders4as well as the underlying judgment entered on 

September 12, 2018. Turner cross-appealed. Oral argument was granted and the 

parties were permitted to file supplemental briefing. Having carefully considered 

 

2 CR 50.02.

3 Kentucky Rules of Civil Procedure.

4 An order denying CR 59.05 relief is not in itself a final and appealable order. Tax Ease Lien 

Investments 1, LLC v. Brown, 340 S.W.3d 99 (Ky. App. 2011).
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the law and the record, we reverse the trial court’s denial of Norton’s JNOV 

motion. 

STANDARDS OF REVIEW

We review a trial court’s ruling on a JNOV for clear error. Peters v.

Wooten, 297 S.W.3d 55, 65 (Ky. App. 2009). “[W]e are to affirm 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.” Storm v. Martin, 540

S.W.3d 795, 800 (Ky. 2017) (citation omitted).5 Furthermore, “[t]he trial court is 

vested with a broad discretion in granting or refusing a new trial, and [appellate 

courts] will not interfere unless it appears that there has been an abuse of 

discretion.” Savage v. Three Rivers Med. Ctr., 390 S.W.3d 104, 111 (Ky. 2012) 

(citations omitted). 

ANALYSIS

Norton specifically raises the following arguments: 1) the undisputed 

evidence demonstrates Turner did not have a qualifying “disability” under the 

KCRA; 2) there was no evidence that the decision to terminate Turner’s 

 

5 Norton’s claim that Turner lacked a qualifying disability was raised in its motions for summary 

judgment, a directed verdict, and JNOV. Norton properly appeals from denial of the latter. 

“[O]nce the trial begins, the underlying purpose of the summary judgment expires and all matters 

of fact and law procedurally merge into the trial phase, subject to in-trial motions for directed 

verdict or dismissal and post-judgment motions for new trial and/or judgment notwithstanding 

the verdict.” Transportation Cabinet, Bureau of Highways, Commonwealth of Kentucky v.

Leneave, 751 S.W.2d 36, 38 (Ky. App. 1988). See also Ortiz v. Jordan, 562 U.S. 180, 183-84, 

131 S. Ct. 884, 888-89, 178 L. Ed. 2d 703 (2011).
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employment was substantially motivated by a disability; and 3) the court should 

vacate the excessive emotional damages award. Turner’s cross-appeal argues that 

“by offsetting Turner’s back pay award by her unemployment benefits, the circuit 

court deprived her of a statutory entitlement, and granted Norton a windfall on 

liability.” The first issue is dispositive here. However, it is first necessary to 

address the underlying statutory and other relevant legal authority. 

A. The KCRA 

“Given similar language and the stated purpose of KRS Chapter 344 

to embody the federal civil rights statutes, including the Americans with 

Disabilities Act (ADA), this court may look to federal case law in interpreting the 

Kentucky Civil Rights Act with respect to [a] claim of disability discrimination 

under KRS 344.040.” Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705-06 

(Ky. App. 2004). 

In Hallahan a panel of this Court summarized what is necessary for a 

plaintiff to demonstrate a prima facie case of disability discrimination under the 

KCRA:

Under KRS 344.040(1), it is unlawful for an 

employer to discharge or otherwise discriminate 

against an individual with respect to compensation, 

terms, conditions or privileges of employment 

because the person is a “qualified individual with a 

disability.” The plaintiff bears the initial burden of 

establishing a prima facie case of disability 
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discrimination against the defendant. In order to 

establish a prima facie case of discrimination 

based on a disability, the plaintiff must show: (1) that he 

had a disability as that term is used under the statute (i.e., 

the Kentucky Civil Rights Act in this case); (2) that he 

was “otherwise qualified” to perform the requirements of 

the job, with or without reasonable accommodation; and 

(3) that he suffered an adverse employment decision 

because of the disability. 

Under KRS 344.010(4), a “disability” is defined 

as:

(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.

Id. at 706-07 (citations and footnotes omitted).

Under the KCRA, major life activities include, “among other things, 

walking, seeing, hearing, performing manual tasks, caring for oneself, speaking,

breathing, learning, and working.” Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 

592 (Ky. 2003) (citations and footnotes omitted). “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, 138 S.W.3d at 707 

(citation omitted). However, “[t]he ultimate determination of whether 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 
-8-

circumstances.” Id. (citing Doebele v. Sprint/United Management Co., 342 F.3d 

117, 1130 n.5 (10th Cir. 2003)). 

B. Application of the ADA and Its Amendments 

The primary issue before this Court is whether, as a matter of law, 

Turner’s cancer constitutes a qualifying disability under the KCRA. The definition 

of disability provided in KRS 344.010(4) is identical to the original version of the 

ADA under 42 U.S.C.6 § 12102(2). In 2008, Congress amended the ADA to 

provide a much more robust definition of disability. However, the KCRA has not

been amended to reflect these changes. Nevertheless, Turner primarily contends 

that we should interpret the relevant provisions of the KCRA in tandem with the 

2008 amendments to the ADA. A comparison of the original provision, 42 U.S.C. 

§ 12102, and its amended version is instructive. The former provides in relevant 

part as follows:

(2) DISABILITY. – The term “disability” means, with 

respect to an individual –

(A) a physical or mental impairment that 

substantially limits one or more of the major life 

activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

 

6 United States Code.
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42 U.S.C. § 12102(2) (1990), amended by 42 U.S.C. § 12102 (2008). By contrast, 

the amended version provides in relevant part:

(1) Disability

The term “disability” means, with respect to an 

individual –

(A) a physical or mental impairment that 

substantially limits one or more major life 

activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment 

(as described in paragraph (3)).

(2) Major life activities

(A) In general

For purposes of paragraph (1), major life 

activities include, but are not limited to, caring 

for oneself, performing manual tasks, seeing, 

hearing, eating, sleeping, walking, standing, 

lifting, bending, speaking, breathing, learning, 

reading, concentrating, thinking, 

communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life 

activity also includes the operation of a major 

bodily function, including but not limited to, 

functions of the immune system, normal cell 

growth, digestive, bowel, bladder, 

neurological, brain, respiratory, circulatory, 

endocrine, and reproductive functions.
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42 U.S.C. § 12102 (1)-(2) (amending 42 U.S.C. § 12102 (1990)) (emphasis added). 

The amended version of the ADA is commonly referred to as the Americans with 

Disabilities Act Amendments Act (ADAAA). The amended statute provides a 

broad definition of “major life activities.” The original version did not define that

term. The amended provision also creates an entirely new category – “Major

bodily functions” – and then construes those bodily functions as constituting

“major life activities” for purposes of paragraph (1). Accordingly, the amended 

version provides a more expansive definition of what constitutes “major life

activities.” 

However, “normal cell growth” appears only in the ADAAA 

definition of what constitutes a qualifying disability. See 42 U.S.C. § 12102(2)(B) 

(2008). The pre-amendment version does not contain that provision. As stated, 

the KCRA mirrors the pre-amendment version articulated under 42 U.S.C. §

12102(2) (1990) and, therefore, does not expressly recognize “normal cell growth” 

as a major life activity, the substantial limitation of which would constitute a 

qualifying disability under Kentucky law. 

Critically, 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. One need not be an oncologist to see the merit in Turner’s 

position that cancer limits normal cell growth. Nevertheless, the question before 
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this Court is an issue of law, not medicine. Neither the plain language of the

KCRA nor its accompanying case law has embraced “normal cell growth” as a 

major life activity. Turner concedes that a panel of this Court has previously 

applied the ADA’s pre-amendment standards to the KCRA. See Larison v. Home 

of the Innocents, 551 S.W.3d 36 (Ky. App. 2018). Therein, the Court held that 

“the KCRA retains the former definition of disability, prior to the 2008 

Amendments of the federal law.” Id. at 43 (emphasis in original) (citation

omitted). We decline Turner’s request to revisit Larison’s holding and echo the 

reasoning embraced by the United States District Court for the Western District of 

Kentucky:

[t]he Court’s research has revealed no published 

Kentucky cases addressing how the ADAAA affects, if at 

all, claims for disability discrimination brought under the 

KCRA. Federal courts continue to interpret the KCRA 

consistent with pre-ADAAA jurisprudence. Until such 

time as the Kentucky Supreme Court or General 

Assembly speaks on this issue, the Court will take that 

approach. 

Laferty v. United Parcel Serv., Inc., 186 F. Supp. 3d 702, 707 n.3 (W.D. Ky. 2016) 

(citations omitted).7 Turner further argues, however, that even if we decline to 

 

7

See also, e.g., Watkins v. Shriners Hosps. for Children, Inc., No. 5:18-CV-548-REW-MAS, 

2020 WL 2309468, at *9 (E.D. Ky. May 8, 2020) (“Larison . . . is controlling authority.”); and 

Hernandez v. Mayfield Consumer Products, LLC, No. 2020-CA-0459-MR, 2021 WL 223530, at 

*5 (Ky. App. Jan. 22, 2021) (citation omitted) (“because the KCRA has not been amended to 

conform with the ADAAA, courts continue to interpret the KCRA consistently with preamendment ADA law.”). 
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apply the amended language of ADAAA, Turner’s breast cancer still constitutes a 

qualifying disability under the pre-amended version that is mirrored in the KCRA. 

We disagree. 

C. Application of the KCRA 

To reiterate, disability is defined under KRS 344.010(4) as:

(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.

As also previously cited, major life activities under the KCRA include, “among 

other things, walking, seeing, hearing, performing manual tasks, caring for oneself, 

speaking, breathing, learning, and working.” Schave, 127 S.W.3d at 592 (citations 

and footnotes omitted) (emphasis added). Therefore, although the statutory 

definition of disability under KRS 344.010(4) may not be as expansive as the 

ADAAA, courts have interpreted KRS 344.010(4) with a degree of elasticity to 

include at least rudimentary and fundamental daily tasks. Nevertheless, we cannot 

overly stress 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. For example, during closing argument, Turner’s counsel 

referenced the requirement of a substantial limitation on major life activities and 
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conceded that “we know [Turner] could do all of those things. We know that 

[Turner] could go to work. Let me tell you what [Turner] couldn’t do. She 

couldn’t have her cells grow normally.” Norton objected and the trial court 

admonished Turner’s counsel to conform her argument to the evidence presented. 

Thereafter, Turner’s counsel stated as follows:

Joyce Turner had cancer – breast cancer. If you didn’t 

treat cancer, what do you think would happen? What 

kind of major life activities would be impacted if you 

didn’t treat the cancer that you discovered that you had? 

How about all of them? It’s very likely, but what 

happened – cancer is a potentially fatal disease. Joyce 

Turner was receiving treatment to stave off any impact to 

walking, talking, sleeping, thinking, all those things, 

because she wanted to live and not die. Opposing 

counsel wants you to believe that [Turner’s] cancer 

didn’t impact any major life activity, but that’s not what 

the case is. Major life activities are all going to be 

impacted by cancer if it’s not treated, and that’s what was 

going to happen with [Turner].8 

 

However, the pre-amendment version of the ADA has been interpreted as requiring 

“a person be presently – not potentially or hypothetically – substantially limited in 

order to demonstrate a disability.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 

482, 119 S. Ct. 2139, 2146, 144 L. Ed. 2d 450 (1999), superseded by statute, ADA

Amendments Act of 2008, Pub. L. No. 110-325 (eff. Jan. 1, 2009). Rather, a 

 

8 Turner’s closing argument was confined mostly to disputing the process and substance of 

Norton’s investigation into her job performance, and therefore focusing on her termination as a 

pretext to the actual alleged reason that her employment was terminated, i.e., her cancer. 
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“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.” Id. (internal quotation marks omitted). And as 

previously stated, 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. Lastly, at oral argument on appeal, 

Turner’s counsel candidly stated:

We did not argue that Turner could not work, that she 

could not take care of herself or perform manual tasks. 

What was argued, has always been, that her major life 

activity that was substantially limited was . . . . Normal 

cell growth was the major life activity at each point of 

this trial that was argued was substantially limited. 

 

Although the tragedy of a cancer diagnosis and its accompanying 

tribulations are not remiss from our consideration, without clearly articulable 

evidence that conforms with KRS 344.010(4) and its associated case law, cancer 

cannot automatically be considered a qualifying disability. See Watkins, 2020 WL 

2309468, at *10 (collecting cases) (“Unlike decisions applying the updated federal 

statute, pre-ADAAA cases generally have held that cancer is not a qualifying 

disability.”). More precisely, although it is clear that cancer is often accompanied 

by physical or mental limitations, Turner has not presented any specific evidence 
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of a qualifying disability under the KCRA “upon which reasonable men could 

differ.” Storm, 540 S.W.3d at 800 (citation omitted). Rather, Turner concedes that

she argued throughout the litigation that the major life activity at issue was normal

cell growth, which is not recognized under Kentucky law. Therefore, Norton was

entitled to a JNOV. This is not to say that cancer cannot be a qualifying disability 

based on the specific evidence offered in certain cases. In the present case,

however, no such evidence was presented.9 In that same vein, Turner has not cited 

any sufficient evidence indicating that her employment was terminated because she 

was “regarded as having such an impairment.” KRS 344.010(4)(c). Although 

Turner’s supervisors were aware that she had cancer, that alone is insufficient to 

satisfy KRS 344.010(4). See Hallahan, 138 S.W.3d at 708 (“[t]he mere fact that 

[employer] had knowledge of [employee]’s medical problems, however, was not 

sufficient to show that it regarded him as having a disabling impairment.”). 

Lastly, in its “findings and purposes” for amending the ADA, 

Congress has expressed displeasure with courts’ narrow interpretation of “the 

broad scope of protection intended to be afforded by the ADA.” ADA 

Amendments Act of 2008, Pub. L. No. 110-325 (eff. Jan. 1, 2009). Accordingly,

 

9 We reach this conclusion in consideration that the parties have had the opportunity to 

extensively brief this case and to present their arguments orally to the Court. We commend the 

presentation and arguments of both parties. Nevertheless, the evidence presented is insufficient 

to satisfy the KCRA’s qualifying disability requirement. 
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Turner’s argument is not without merit that the ADA and by analogy, the KCRA,

could be broadly construed to include “normal cell growth” even if not expressly

codified. Nevertheless, we must reiterate and ultimately conclude that “[u]ntil 

such time as the Kentucky Supreme Court or General Assembly speaks on this 

issue, the Court will take [the pre-ADAAA] approach.” Laferty, 186 F. Supp. 3d at 

707 n.3. 

D. Remaining Issues

Because Turner failed to demonstrate that she had a qualifying 

disability as a matter of law, this case should not have gone to trial. As a result, the 

trial court erred in failing to grant Norton’s motion for a directed verdict, and its 

subsequent JNOV motion that is the subject of this appeal. Therefore, we need not 

address Norton’s remaining post-trial motions, causation, damages, or any other 

factual questions. Turner’s cross appeal concerning the offset of her back pay 

award resulting from her unemployment benefits is also now moot. However, it 

has become clear to this Court that it is necessary to clarify that the correct causal 

standard for disability discrimination cases brought under the KCRA is the “butfor” standard. See, e.g., Hammond v. Norton Healthcare, Inc., No. 2011-CA000586-MR, 2012 WL 5039465 (Ky. App. Oct. 19, 2012); and Lewis v. Humboldt

Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012) (en banc). 
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CONCLUSION

For the foregoing reasons, we reverse the Jefferson Circuit Court’s 

Order that denied Norton’s JNOV motion with instructions to enter a judgment in 

favor of Norton, pursuant to its motion for a judgment notwithstanding the verdict. 

ALL CONCUR.

BRIEFS FOR APPELLANT/

CROSS-APPELLEE:

Donna King Perry

Jeremy S. Rogers

Robert C. Rives, IV

Amir J. Nahavandi

Louisville, Kentucky 

ORAL ARGUMENT FOR

APPELLANT/CROSSAPPELLEE:

Jeremy S. Rogers

Louisville, Kentucky

BRIEF FOR APPELLEE/

CROSS-APPELLANT:

Jeremiah W. Reece

Louisville, Kentucky

ORAL ARGUMENT FOR 

APPELLEE/CROSSAPPELLANT:

Jeremiah W. Reece

Louisville, Kentucky