NORTON HEALTHCARE, INC. V. DONNA DISSELKAMP

Kentucky Supreme Court

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 agediscrimination claimant, like Disselkamp, attempting to prove age

discrimination using circumstantial evidence must first make a legally

2

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



1 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817,

1824, 36 L. Ed. 2d 668 (1973).

2 This opinion will refer to both “Norton Hospital” and “Norton Suburban

Hospital” as simply “Norton.” As far as we can tell from the parties’ briefs, the specific

“Suburban” location of Norton Hospital only matters to explain some parts of witness

McGinnis’s testimony. Disselkamp, McGinnis, and all other Norton employees and

supervisors who testified at trial worked at the Suburban location of Norton Hospital.

McGinnis explained during her testimony that she felt uncomfortable providing

testimony adverse to Norton in this case because, even though she left the Suburban

location and began working at another Norton hospital sometime after Disselkamp

was terminated, Norton Hospital was still McGinnis’s employer.

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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

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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



3 Kentucky Revised Statutes (KRS) 344.010, et seq.

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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

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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

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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 declined Disselkamp’s request to allow her to recall

McGinnis as a witness despite acknowledging that the proposed testimony

would be beneficial to Disselkamp and that it could not point to a specific case

or statute to support its decision. The trial court observed that it would be

fundamentally unfair to allow a witness who had been deposed and examined

at length in discovery to retake the stand during trial after conferring privately

with the plaintiff.

The trial court did allow Disselkamp to make a testimonial offer of proof

in which McGinnis recounted the meeting she attended where Bischoff

discussed her plan to fire older employees and bring in younger ones.



4 There was discussion with the trial court about whether Disselkamp’s

attorneys could speak with McGinnis outside the presence of Norton’s attorneys

because McGinnis was still a Norton employee. Eventually, it was agreed that

Disselkamp’s attorneys could speak to McGinnis.

8

After the close of proof, the trial court held the first jury-instruction

conference. The trial court’s proposed instructions directed the jury that it

“shall find for Disselkamp if” it found, among other things, that “Disselkamp’s

age (60) was a substantial motivating factor in Norton’s decision to terminate

her employment; . . . AND Disselkamp was replaced by a substantially younger

person.” The trial court rejected Disselkamp’s request that the agediscrimination jury instruction be modified to include a definition of

substantially younger. Disselkamp also filed a memorandum objecting to the

trial court’s insertion of the substantially-younger person requirement into the

jury instructions, arguing that the substantially-younger person factor must be

resolved by the trial court’s ruling on motions for summary judgment or

directed verdict. Disselkamp also objected to the trial court’s inclusion of Tracy

Patton’s name in the retaliation instruction, arguing that Disselkamp offered

no evidence that supported a finding that Patton retaliated against her. The

trial court rejected Disselkamp’s arguments, finding that the substantiallyyounger requirement was properly included in the age-discrimination jury

instruction because it was an element of the McDonnell Douglas framework and

that Patton’s name was properly included as a potential retaliator because

Patton was accused of being a retaliator in Disselkamp’s complaint and prediscovery. The jury returned a verdict in Norton’s favor on both of

Disselkamp’s claims.

IV. THE COURT OF APPEALS REVERSES THE JUDGMENT.

Disselkamp appealed the judgment to the Court of Appeals, making the

following arguments: (1) the trial court erred in not allowing McGinnis to be

recalled as a witness; (2) the trial court erred in declining to include a missing-

9

evidence, or spoliation, instruction; (3) the trial court erred in including

Patton’s name among the list of potential retaliators in the retaliation jury

instruction; (4) the trial court erred in providing in the retaliation jury

instruction that the jury could find for Disselkamp only if it found that the

individuals responsible for her termination were aware that she complained

about “harassment and gender discrimination,” making it seem as though the

jury was required to find that Disselkamp complained about two separate

matters; and (5) the trial court erred in inserting the McDonnell Douglas

substantially-younger requirement into the age-discrimination jury instruction.

As to the first argument, the Court of Appeals found that the trial court

had the authority under KRE5 611 to determine whether it would allow

McGinnis to be recalled as a witness and held it was not an abuse of discretion

to deny Disselkamp’s request to recall McGinnis. As to the second argument,

the Court of Appeals held the trial court did not abuse its discretion in

declining to give a missing-evidence instruction because there was no evidence

presented that the requested evidence was “unaccountably missing” or was lost

due to conduct by Norton that went beyond “mere negligence.”6 The Court of

Appeals observed that even if the failure to give a missing-evidence instruction

were an abuse of discretion, the trial court’s failure here was harmless.

Disselkamp’s theory was that Bischoff used Disselkamp’s actions in preparing

the QMT reports as a pretext for discrimination and retaliation. However, it was



5 Kentucky Rules of Evidence

6 The Court of Appeals relied solely on this Court’s decision in University

Medical Center, Inc., v. Beglin, 375 S.W.3d 783, 792 (Ky. 2011) in considering

Disselkamp’s second argument.

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“undisputed that 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.” Therefore, Disselkamp was

not prejudiced by Norton’s failure to produce the requested evidence.

As to the third argument, the Court of Appeals found that including

Patton’s name in the retaliation instruction, even if erroneous, was harmless

because the instruction allowed the jury to find for Disselkamp if either

“Richard Shilling, Lori Bischoff, or Tracy Patton” retaliated against Disselkamp,

and it was not prejudicial because there was evidence presented that Patton

participated in the decision to terminate.

As to the fourth argument, the Court of Appeals found that this

argument was not preserved for appeal because Disselkamp did not object

when the trial court offered a retaliation instruction that required the jury to

find that Disselkamp complained of “harassment and gender discrimination,”

and Disselkamp’s tendered jury instructions on the claim were not sufficiently

different to alert the trial court to the alleged error.7

Most significantly for our review today, the Court of Appeals reversed the

judgment and remanded the case to the trial court based on Disselkamp’s fifth



7 Disselkamp’s tendered instructions provided that the jury would find for

Disselkamp if it found that “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.” The instructions submitted to the jury provided that the

jury would find for Disselkamp if “Disselkamp engaged in a protected activity, i.e.,

complained to Norton, in good faith, about harassment and gender discrimination by

Kevin Hendrickson[] . . . and there was a causal connection between Disselkamp’s

termination and her complaints about Kevin Hendrickson.” The Court of Appeals

found that the only difference between the two instructions was Disselkamp’s use of

“and/or” instead of “and,” and Disselkamp did not explain how this minor difference

would call the trial court’s attention to the alleged error.

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argument. Here, the appellate panel agreed with Disselkamp that the

substantially-younger requirement should not have been included in the jury

instructions because substantially younger was a legal question for the trial

court to determine based on the circumstances of the case. The Court of

Appeals noted that the Kentucky Civil Rights Act, is interpreted consistently

with applicable federal anti-discrimination laws,8 and “Age discrimination cases

under the federal [a]ge Discrimination in Employment Act (“ADEA”), 29 U.S.C.9

§§ 621–634, are analyzed under the same framework as employment

discrimination cases under Title VII.”10 In Title VII cases, the jury is called on

to determine whether the defendant intentionally discriminated against the

plaintiff,11 which can be proven by the plaintiff by presenting either direct

evidence of the defendant’s animus, or, in absence of direct evidence,

presenting circumstantial evidence by satisfying the burden-shifting framework

established in McDonnell Douglas Corp. v. Green12 to prove discrimination.13

The Court of Appeals found that the McDonnell Douglas framework is to

be used only as a burden-shifting mechanism to ensure only legitimate agediscrimination cases based on circumstantial evidence are submitted to the



8 Williams v. Wal-Mart Stores Inc., 184 S.W.3d 492, 495 (Ky. 2005).

9 United States Code.

10 Williams, 184 S.W.3d at 495 (citing Grosjean v. First Energy Corp., 349 F.3d

332, 335 (6th Cir. 2003)).

11 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).

12 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668.

13 Williams, 184 S.W.3d at 496 (“Under the McDonnell Douglas framework a

plaintiff can establish a prima facie case of age discrimination by proving that he or

she: (1) was a member of a protected class, (2) was discharged, (3) was qualified for the

position from which they were discharged, and (4) was replaced by a person outside

the protected class.”).

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jury. If the plaintiff establishes the prima facie case, a presumption of illegal

discrimination arises, and the burden then shifts to the defendant to produce

evidence of a legitimate reason for terminating the plaintiff to survive a motion

for a directed verdict. If the defendant is successful in satisfying this burden,

the McDonnell Douglas framework then “drops from the case” and the factfinder is then called on to determine whether the termination was

discriminatory.14 Based on this standard, the Court of Appeals found that the

jury instructions failed Kentucky’s bare-bones jury-instruction test and

misstated the law. The court held that these errors prejudiced Disselkamp

because there was no way of knowing whether the jury found for Norton

because it believed that Norton did not terminate Disselkamp because of her

age and because it believed that Disselkamp was not replaced by someone

substantially younger or because it believed Norton terminated Disselkamp

because of her age but Disselkamp was not replaced by someone substantially

younger. The Court of Appeals also provided the trial court with a model jury

instruction for Disselkamp’s age-discrimination claim that would be

appropriate for use at trial on remand:

You will find for the Plaintiff under this instruction if you are

satisfied from the evidence that her age was a substantial

motivating factor in Defendant’s decision to take adverse

employment action against her. Otherwise you will find for

Defendant under this instruction.

V. THE CASE BEFORE THIS COURT.

Norton’s central argument is that the Court of Appeals’ opinion should be

reversed and the jury’s unanimous defense verdict reinstated because the jury



14 Aikens, 460 U.S. at 714–15, 103 S. Ct. at 1481.

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instructions on the age-discrimination claim did not misstate the law.

Conversely, Disselkamp argues that the Court of Appeals’ opinion should be

reversed only insofar as it finds that the retaliation instruction did not misstate

the law, the trial court did not err in refusing to allow McGinnis to be recalled

as a witness, and that the trial court did not err in refusing to grant a missingevidence instruction.

A. Challenges to the Age-Discrimination and Retaliation Jury

Instructions.

We will first consider the parties’ arguments with respect to the

challenges to the age-discrimination and retaliation jury instructions because

similar principles and standards of review apply.

1. Preservation and Standard of Review.

CR15 51(3) provides that:

No 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.

As this Court explained in Sand Hill Energy, Inc. v. Smith, “[t]he

underlying purpose of CR 51(3) is to ‘obtain the best possible trial at the trial

court level’ by ‘giv[ing] the trial judge an opportunity to correct any errors

before instructing the jury.’”16 The party challenging jury instructions given at

trial may preserve the challenge for appeal by making an objection, either oral

or written, before the court instructs the jury, that specifically states “the



15 Kentucky Rules of Civil Procedure.

16 142 S.W.3d 153, 162–63 (Ky. 2004) (quoting Cobb v. Hoskins, 554 S.W.2d

886, 887 (Ky. App. 1977), and Ellison v. R & B Contracting, Inc., 32 S.W.3d 66, 72–73

(Ky. 2000), respectively).

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matter to which he objects and the ground or grounds of his objection,” or by

offering his own proposed instructions which “fairly and adequately” present

his position.17

Kentucky appellate courts have explained that a tendered

instruction will not fairly and adequately present the party's

position as to an allegation of instructional error when: (1) the

omitted language or instruction was not contained in the

instruction tendered to the trial court; i.e., when the allegation of

error was not presented to the trial court at all; (2) 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; or (3) the tendered instruction

itself was otherwise erroneous or incomplete.18

A properly preserved challenge to the contents of a given jury instruction

is a question of law subject to de novo review on appeal. 19 But if a party fails to



17 CR 51(3).

18 Sand Hill Energy, Inc., 142 S.W.3d at 163–64 (citations omitted).

19 As we explained in Sargent v. Shaffer, Kentucky courts “distinguish between

two types of alleged errors involving jury instructions. The first type of instructional

error is demonstrated by the claim that a trial court either (1) failed to give an

instruction required by the evidence, or (2) gave an instruction that was not

sufficiently supported by the evidence. . . . The second type of instructional error is

represented by the claim that a particular instruction given by the trial court,

although supported by the evidence, was incorrectly stated so as to misrepresent the

applicable law to the jury. . . . When the question is whether a trial court erred by: (1)

giving an instruction that was not supported by the evidence; or (2) not giving an

instruction that was required by the evidence; the appropriate standard for appellate

review is whether the trial court abused its discretion. . . . However, when it comes to

the second type of instructional error—whether the text of the instruction accurately

presented the legal theory—a different calculus applies. Once the trial judge is

satisfied that it is proper to give an instruction, it is reasonable to expect that the

instruction will be given properly. The trial court may enjoy some discretionary leeway

in deciding what instructions are authorized by the evidence, but the trial court has

no discretion to give an instruction that misrepresents the applicable law. The content

of a jury instruction is an issue of law that must remain subject to de novo review by

the appellate courts. In summary, a trial court's decision on whether to instruct on a

specific claim will be reviewed for abuse of discretion; the substantive content of the

jury instructions will be reviewed de novo.” 467 S.W.3d 198, 203–04 (Ky. 2015), as

corrected (Aug. 26, 2015) (citations omitted).

15

preserve properly a challenge to jury instructions in the trial court, the

challenge is not entitled to appellate review.20

As to the parties’ challenge to the age-discrimination jury instruction,

this issue is properly preserved for appellate review based on Disselkamp’s

tendered jury instruction on the age-discrimination claim and her

memorandum of law that argued against inclusion of the “substantially

younger person” requirement in the jury instructions. Because this juryinstruction issue concerns the content of the instructions, this is an issue of

law subject to de novo review.

As to Disselkamp’s challenge to the retaliation jury instruction, the trial

court’s instruction stated that the jury could return a verdict in her favor if it

found that:

• Disselkamp engaged in a protected activity, i.e., complained to

Norton in good faith, about harassment and gender discrimination

by Kevin Hendrickson;

• Richard Shilling, 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.



20 Hill v. Kentucky Lottery Corp., 327 S.W.3d 412, 427 (Ky. 2010), as modified on

denial of reh'g (Dec. 16, 2010), (“We conclude that KLC did not comply with CR 51(3),

and therefore was not entitled to demand a new trial on alleged errors that it failed to

bring to the trial court's attention in an adequate and timely manner. . . . KLC's

compliance with CR 51(3) at the end of a three-week jury trial would have not only

allowed the trial court to fairly evaluate the matter, it would have enabled the Hills to

protect their interest in avoiding the need for a second trial.”).

16

Disselkamp objects to two propositions included in the above instruction.

First, she argues that by including Human Resources Manager Tracy Patton’s

name among the list of potential retaliators, the trial court “commented on the

evidence and inserted another potential retaliator that the jury well knew had

no motive to terminate Ms. Disselkamp.” There is no dispute that Disselkamp

properly preserved this issue for appeal,21 and, as such, the standard of review

is de novo.

Second, Disselkamp points to the requirement in the retaliation

instruction that provided that the jury could only return a verdict in

Disselkamp’s favor if it found that Disselkamp engaged in a protected activity

by complaining to Norton about “harassment and gender discrimination” by

her former supervisor, Kevin Hendrickson. Disselkamp argues that this part of

the instruction improperly required her to prove she complained to Norton

about two separate matters. Unlike the first claim of error regarding the

retaliation instruction, the parties dispute whether Disselkamp preserved this

issue for appeal. But the parties do not dispute that Disselkamp’s only

argument for proper preservation in accordance with CR 51(3) is that she

tendered her own set of proposed jury instructions for her retaliation claim that

varied slightly from the instructions submitted to the jury.

Disselkamp’s proposed retaliation jury instruction provided the following:

[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



21 Disselkamp orally objected to including Ms. Patton’s name as a potential

retaliator in the instruction provided to the jury, arguing that there was no evidence

that Patton fired Disselkamp in retaliation for Disselkamp complaining to Norton

about Hendrickson’s alleged unlawful conduct.

17

decision to terminate her employment. Otherwise you will find for

Defendant.”

As stated above, the Court of Appeals found that Disselkamp did not

preserve this issue by simply tendering her own set of proposed instructions

because Disselkamp’s instructions and the trial court’s instructions on the

retaliation claim were not so different as to “fairly and adequately present the

party's position as to an allegation of instructional error.” We agree.

The nuanced difference between the two instructions with respect to the

kind of conduct in which Disselkamp engaged is minor, as Disselkamp’s

instruction differs from the trial court’s only by use of the grammatical device

and/or in place of the conjunction and. Even if the difference between the two

instructions cannot be dismissed as trivial, it cannot be said that the trial

court was made aware of Disselkamp’s grounds for her objection—that being

that the instruction improperly required the jury to find that she complained

about two separate matters when KRS 344.280 protected a person who

“opposed a practice declared unlawful” under the chapter—so that the trial

court truly had an opportunity to address the alleged error. Again, CR 51(3)

required Disselkamp “fairly and adequately” to present her position on the

challenged instruction.

Like the Court of Appeals, we find Disselkamp’s argument that the trial

court’s use of the phrase “harassment and gender discrimination” is not

preserved for appellate review, and we decline to consider the merits of this

18

argument.22 We consider the remaining challenges to the age-discrimination

and retaliation instructions below.

2. Jury Instructions for Disselkamp’s Age Discrimination Claim.

The challenged jury instruction the trial court gave on Disselkamp’s agediscrimination claim said:

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 the 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.

The parties raise the following question: Is it a misstatement of Kentucky

law to include the substantially-younger requirement as established in

McDonnell Douglas Corp. v. Green in a jury instruction for a claim of age

discrimination under the Kentucky Civil Rights Act? The Court of Appeals

answered this question in the affirmative and further found that the perceived

error was not harmless. The question here is a matter of first impression under

our law. And while only the substantially-younger requirement of the



22 Even though Disselkamp does not request palpable error review of this issue

in accordance with CR 61.02, it does not seem that she would be able to show that

this error resulted in manifest injustice. See Nami Res. Co., L.L.C. v. Asher Land &

Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018) (“To qualify as ‘palpable error’ under

[CR 61.02], an error ‘must be easily perceptible, plain, obvious and readily noticeable.’

. . . ‘Implicit in the concept of palpable error correction is that the error is so obvious

that the trial court was remiss in failing to act upon it sua sponte.’” (quoting Brewer v.

Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006), and Lamb v. Commonwealth, 510

S.W.3d 316, 325 (Ky. 2017), respectively).

19

McDonnell Douglas framework is at issue in this case, this Court has not had

the opportunity analyze whether any of the requirements established by the

United States Supreme Court in McDonnell Douglas Corp. v. Green can be

properly included in jury instructions for an age-discrimination claim based on

circumstantial evidence.

In support of its argument that the Court of Appeals erred on this point,

Norton asserts that the Court of Appeals misconstrued and underappreciated

the role of the substantially-younger requirement in age-discrimination cases.

Norton argues that the requirements of the McDonnell Douglas framework may

properly be included in age-discrimination jury instructions because it is

undisputed that age-discrimination plaintiffs who are relying on circumstantial

evidence are required to present proof of these requirements to survive

dismissal. In support of this assertion, Norton cites primarily to the United

States Supreme Court’s decisions in McDonnell Douglas Corp. v. Green23 and its

progeny and to this Court’s decision in Williams v. Wal-Mart Stores Inc.

24 In the

alternative, Norton asserts that even if we conclude that the age-discrimination

instruction at hand did misstate the law, the error was harmless because the

alleged error did not affect the verdict. In other words, Norton asserts that any

error in this instruction was harmless because it was a redundancy, merely

asking the jury to make a finding of fact on an issue that Disselkamp was

required to prove to submit the case to the jury in the first place.



23 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668.

24 184 S.W.3d at 495. Norton also cites to several other cases decided by this

Court and other federal courts that, as explained in more detail below, are not binding

in this Court.

20

In reliance on essentially the same cases, Disselkamp argues that the

substantially younger-requirement was originally intended to only act as a

burden-shifting mechanism to be used only by the trial court in deciding

motions for summary judgment or directed verdict. In other words, Disselkamp

argues that the McDonnell Douglas framework requirements were never

intended to be a fact question for the jury to decide.

Based on our review of the record and supporting case law, we agree with

Disselkamp that the instruction at hand misstated the law because it included

the substantially-younger requirement as an issue for the jury rather than the

judge. And we hold that this error prejudiced Disselkamp. Our holding here is

justified based on: (1) the relevant provisions of both the Federal Civil Rights

Act of 1964 and the Kentucky Civil Rights Act; (2) the history of the McDonnell

Douglas framework and its application in the federal courts, specifically with

respect to drafting and discussing potential jury instructions; (3) the traditional

application of the McDonnell Douglas framework to Kentucky court

proceedings; and (4) the bare-bones approach to jury instructions adopted by

Kentucky courts and its impact on applicable presumptions.

a. The Kentucky and Federal Civil Rights Act

The specific statutory provision for Disselkamp’s age-discrimination

claim is KRS 344.040(1)(a). That statute makes it unlawful for an employer “to

discharge any individual, or otherwise to discriminate against an individual

with respect to compensation, terms, conditions, or privileges of employment,

because of the individual's . . . age forty (40) and over . . . .” As this Court

explained in Meyers v. Chapman Printing Co., “[o]ne important purpose of the

Kentucky Civil Rights Act was to incorporate the anti-discrimination ‘policies

21

embodied’ in the Federal Civil Rights Acts of 1964.”25 But that purpose is not

the only purpose expressed in the Kentucky Civil Rights Act. For example, KRS

344.020(1)(b) provides that one of the purposes is “[t]o safeguard all individuals

within the state from discrimination because of . . . age forty (40) and over[;] . .

. thereby to protect their interest in personal dignity and freedom from

humiliation.” And KRS 344.020(2) provides that the Act “shall be construed to

further the general purposes stated in this section and the special purposes of

the particular provision involved.”

Unlike claims asserted under Kentucky’s statute, claims for relief from

discriminatory practices filed in federal court will be brought under one of two

acts, depending on the status or characteristic the claimant believes was the

basis for the employer’s unlawful discrimination. First, Title VII of the Federal

Civil Rights Act of 1964 addresses employment discrimination based on “race,

color, religion, sex, or national origin.”26 As codified, the Federal Civil Rights

Act provides that “[i]t shall be an unlawful employment practice for an

employer-- (1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual . . . because of such

individual's race, color, religion, sex, or national origin[.]”27 Second, the Age

Discrimination in Employment Act (ADEA) provides that “[i]t shall be unlawful

for an employer-- (1) to fail or refuse to hire or to discharge any individual or



25 840 S.W.2d, 814, 817 (Ky.1992) citing KRS 344.020(1)(a)).

26 42 U.S.C. § 2000e–2(a).

27 Id.

22

otherwise discriminate against any individual . . . because of such individual's

age[.]”28

b. The McDonnell Douglas Framework in Federal Courts

The line of cases relevant to Disselkamp’s age-discrimination claim

begins in 1973 with McDonnell Douglas Corp. v. Green. When that case was

decided, plaintiffs filing claims under the Federal Civil Rights Act were not

entitled to a trial by jury; a right afforded only with the passage of the Federal

Civil Rights Act of 1991.29 In McDonnell Douglas, a former employee of the

McDonnell Douglas Corporation brought suit against the corporation, in part,

for the corporation’s alleged racial discrimination in deciding not to rehire the

plaintiff, a long-time activist in the civil rights movement, following the

plaintiff’s participation in several events that targeted the corporation.30 At the

outset, the Supreme Court expressly stated that the critical issue to be

determined “concerns the order and allocation of proof in a private, non-class

action challenging employment discrimination.”31 In analyzing this issue, the

Supreme Court established the following “order and allocation of proof”

required in cases such as this:

The language of Title VII makes plain the purpose of

Congress to assure equality of employment opportunities and to

eliminate those discriminatory practices and devices which have

fostered racially stratified job environments to the disadvantage of

minority citizens. . . . The complainant in a Title VII trial must

carry the initial burden under the statute of establishing a prima

facie case of racial discrimination. This may be done by showing (i)



28 29 U.S.C. § 623(a)(1).

29 See CIVIL RIGHTS ACT OF 1991, Pub.L. 102–166, 105 Stat. 1071, as codified

in 42 U.S.C. § 1981a(c).

30 411 U.S. at 794–96.

31 Id. at 793–94.

23

that he belongs to a racial minority; (ii) that he applied and was

qualified for a job for which the employer was seeking applicants;

(iii) that, despite his qualifications, he was rejected; and (iv) that,

after his rejection, the position remained open and the employer

continued to seek applicants from persons of complainant's

qualifications. . . . The burden then must shift to the employer to

articulate some legitimate, nondiscriminatory reason for the

employee's rejection. . . . [If the employer satisfies its burden, the

complainant must then] be afforded a fair opportunity to

demonstrate that [employer’s] assigned reason for refusing to reemploy was a pretext or discriminatory in its application. If the

District Judge so finds, he must order a prompt and appropriate

remedy. In the absence of such a finding, [employer’s] refusal to

rehire must stand.32

Based on this standard, the Supreme Court held that the former

employee satisfied its initial burden of establishing a prima facie case of racial

discrimination and the employer also satisfied its burden by offering a

legitimate, nondiscriminatory reason for refusing to rehire the employee.33

Because the plaintiff was not afforded the opportunity at trial to respond to the

employer’s stated reason for refusing to rehire the plaintiff, however, the

Supreme Court remanded the case back to the district court.34 Following this

decision, the Supreme Court decided several other cases in an effort to clarify

the McDonnell Douglas framework.

In 1983, eight years before plaintiffs in Federal Civil Rights Act cases

were entitled to a jury trial, the Supreme Court discussed the role of the

McDonnell Douglas framework in Federal Civil Rights Act cases in U.S. Postal

Servs. Bd. of Governors v. Aikens, which was another racial-discrimination

case. The Supreme Court considered whether a federal district court erred in



32 Id. at 800–07.

33 Id. at 802–03.

34 Id. at 807.

24

entering judgment, following a bench trial, in favor of the defendant employer.35

On appeal to the Supreme Court, the parties focused on the sufficiency of

evidence presented at trial to satisfy the employee’s burden in establishing a

prima facie case.36 The Supreme Court found that the district court erred by

finding in favor of the defendant based on the district court’s belief that the

employee was required to submit direct evidence of discriminatory intent and

erroneously focusing on whether the plaintiff established a prima facie case

“rather than directly on the question of discrimination.”37 In so finding, the

Court provided the following analysis:

Because this case was fully tried on the merits, it is

surprising to find the parties and the Court of Appeals still

addressing the question whether Aikens made out a prima facie

case. We think that by framing the issue in these terms, they have

unnecessarily evaded the ultimate question of discrimination vel

non. By establishing a prima facie case, the plaintiff in a Title VII

action creates a rebuttable “presumption that the employer

unlawfully discriminated against” him. [If the defendant rebuts the

presumption], the fact finder must then decide whether the

rejection was discriminatory within the meaning of Title VII. At this

stage, the McDonnell. . . . presumption “drops from the case,” and

“the factual inquiry proceeds to a new level of specificity. . . .” The

“factual inquiry” in a Title VII case is “whether the defendant

intentionally discriminated against the plaintiff. . . .” The prima

facie case method established in McDonnell Douglas was “never

intended to be rigid, mechanized, or ritualistic. Rather, it is merely

a sensible, orderly way to evaluate the evidence in light of common

experience as it bears on the critical question of discrimination.”

Where the defendant has done everything that would be required of

him if the plaintiff had properly made out a prima facie case,

whether the plaintiff really did so is no longer relevant. The district

court has before it all the evidence it needs to decide whether “the

defendant intentionally discriminated against the plaintiff.” On the

state of the record at the close of the evidence, the District Court in

this case should have proceeded to this specific question directly,

just as district courts decide disputed questions of fact in other



35 460 U.S. 711, 713, 103 S. Ct. 1478, 1481, 75 L. Ed. 2d 403 (1983).

36 Id.

37 Id. at 717. civil litigation. . . . All courts have recognized that the question

facing triers of fact in discrimination cases is both sensitive and

difficult. . . . But none of this means that trial courts or reviewing

courts should treat discrimination differently from other ultimate

questions of fact. Nor should they make their inquiry even more

difficult by applying legal rules which were devised to govern “the

allocation of burdens and order of presentation of proof,” in

deciding this ultimate question.38

In 1996, four years after the Supreme Court took notice that plaintiffs

bringing claims under the Federal Civil Rights Act are entitled to a jury trial,39

the Supreme Court again discussed the McDonnell Douglas framework in

O’Connor v. Consolidated Coin Caterers Corp., which was also the first time the

Court considered the framework’s application to federal age-discrimination

claims brought under the ADEA.40 In O’Connor, the Court was called on to

answer whether a plaintiff who claimed his employment was terminated in

violation of the ADEA must show that “he was replaced by someone outside the

age group protected by the ADEA to make out a prima facie case under the

framework established by McDonnell Douglas[].”41 The Fourth Circuit affirmed

the District Court’s entry of summary judgment in favor of the defendant.42

After discussing the specifics of the McDonnell Douglas framework, the

Supreme Court made clear that while the Fourth Circuit and other federal

courts had applied some version of the framework in assessing claims of age

discrimination following the Court’s decision in McDonnell Douglas, the Court



38 Id. at 713–16.

39 See United States v. Burke, 504 U.S. 229, 241 n.12, 112 S. Ct. 1867, 1874,

119 L. Ed. 2d 34 (1992).

40 517 U.S. 308, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996).

41 Id. at 309.

42 Id. at 309–10.

26

had not established that the framework applied in ADEA cases.43 Because the

parties in O’Connor did not dispute the framework’s application in any sense,

however, the Court assumed that for the purposes of this case the framework

applied. The Court found that the Fourth Circuit’s articulation of the

framework as it applies to ADEA cases was erroneous because it included as

an element that the plaintiff must show that he was replaced by another

employee who was not in the protected class, i.e., not over 40 years of age.44

The Court explained that the purpose of a prima facie case is to require

“evidence adequate to create an inference that an employment decision was

based on a[n] [illegal] discriminatory criterion.”45 In age-discrimination cases,

such an inference cannot be “drawn from the replacement of one worker with

another worker insignificantly younger. Because the ADEA prohibits

discrimination based on age and not class membership, the fact that a

replacement is substantially younger than the plaintiff is a far more reliable

indicator” than the “irrelevant” factor articulated by the Fourth Circuit.46

Finally, in Vance v. Ball State University, the Supreme Court considered a

plaintiff’s retaliation claim brought under the Federal Civil Rights Act, and the

relevant issue was the propriety of the Equal Employment Opportunity

Commission’s (EEOC) guideline definition of a “supervisor.”47 While the facts

and applicable standards in Vance are not relevant to the present case, Vance



43 Id. at 311.

44 Id. at 312–13.

45 Id. at 312 (citations omitted).

46 Id. at 313.

47 570 U.S. 421, 431–32, 133 S. Ct. 2434, 2443, 186 L. Ed. 2d 565 (2013).

27

is still instructive based on the Court’s discussion of the difficulty in including

the McDonnell Douglas elements in jury instructions. The Vance court stated

that “[c]ourts and commentators alike have opined on the need for reasonably

clear jury instructions in employment discrimination cases. And the danger of

juror confusion is particularly high where the jury is faced with instructions on

alternative theories of liability under which different parties bear the burden of

proof.”48 In the accompanying footnotes, the Court cited, for example, the Third

Circuit’s decision in Armstrong v. Burdette Tomlin Memorial Hospital for its

proposition that in the context of the McDonnell Douglas framework, “the prima

facie case and the shifting burdens confuse lawyers and judges, much less

juries, who do not have the benefit of extensive study of the law on the

subject.”49 The Supreme Court also cited the Third Circuit’s decision in

Sanders v. New York City Human Resources Administration for the proposition

that “[m]aking the burden-shifting scheme of McDonnell Douglas part of a jury

charge undoubtedly constitutes error because of the manifest risk of confusion

it creates.”50

Norton directs us to the Sixth Circuit Court of Appeals’ decisions in

Cicero v. Borg-Warner Auto, Inc.,

51 and Blair v. Henry Filters, Inc.

52 In Cicero,



48 Id. at 444–45 (citations omitted).

49 Id. at 444–45 n.13 (quoting Armstrong v. Burdette Tomlin Mem’l Hosp., 438

F.3d 240, 249 (C.A.3 2006)).

50 Id. (quoting Sanders v. New York City Human Resources Admin., 361 F.3d

749, 758 (C.A.2 2004)).

51 280 F.3d 579 (6th Cir. 2002).

52 505 F.3d 517, 526 (6th Cir. 2007). Norton also provided this Court with the

list of federal cases that followed the Second Circuit’s approach in Bucalo v. Shelter

Island Union Free Sch. Dist., 691 F.3d 119, 129-30 (2d Cir. 2012) by requiring that

disputed elements of a prima facie case be submitted to the jury. This list of federal

28

there were no jury instructions at issue in the court’s decision because the

case was on appeal from a trial court’s order granting summary judgment. So

that case is only instructive in that it espouses the same principles established

by the Supreme Court cases discussed at length above regarding the fact

issues involved in the plaintiff’s prima facie case under the McDonnell Douglas

framework. In contrast, the Sixth Circuit in Blair directly considered jury

instructions and established that federal district courts were permitted, but not

required, to instruct a jury on the McDonnell Douglas burden-switching in

“appropriate” discrimination cases that are based on circumstantial evidence.53

The Blair court emphasized, however, that “[w]hen a discrimination case

proceeds to trial, the focus is on the ultimate question of discrimination,

rather than the burden-switching framework, regardless of whether a

plaintiff seeks to prove his case through direct evidence or circumstantial

evidence.”54

Based on the principles and standards established and reaffirmed in the

cases discussed above, we draw the following preliminary conclusions. First,

McDonnell Douglas established a burden-shifting framework, and its purpose is

to ensure that plaintiff employees who lack direct evidence of discrimination

still have an avenue for seeking relief. Second, in all discrimination cases, the

ultimate question is “of discrimination vel non.”55 And third, the Supreme



district court and state appellate court cases may be instructive but are not binding

on this Court.

53 Blair, 505 F.3d at 526 n.9.

54 Id. (emphasis added).

55 Aikens, 460 U.S. at 713. Bryan Garner, the Editor in Chief of Black’s Law

Dictionary, explains that “vel non” is translated to mean “or not.” Bryan A. Garner,

Garner’s Dictionary of Legal Usage 921–22 (3rd ed., Oxford 2011). As applied in this

29

Court has not determined whether the McDonnell Douglas framework,

admittedly a fact inquiry, is better analyzed by the judge or the jury in federal

cases, but the Supreme Court has taken note of the possible dangers

associated with including the framework’s elements in jury instructions. While

Blair and Cicero do provide some guidance in addressing the primary issue

raised in the present case, only Blair directly supports the ultimate rule Norton

asks us to adopt. Moreover, because this Court, unlike the United States

Supreme Court, has established that burden-shifting frameworks are not to be

included in Kentucky bare-bones jury instructions, the Blair case is

distinguishable from the present case.

With these preliminary thoughts in mind, we now turn to how the

McDonnell Douglas framework has been applied in Kentucky Civil Rights Act

cases because these cases and Kentucky’s evidentiary rules and rule regarding

jury instructions will ultimately determine whether the elements of the

McDonnell Douglas framework may properly be included in Kentucky jury

instructions.

c. The McDonnell Douglas Framework in Kentucky Courts

In Williams v. Wal-Mart Stores, Inc., this Court applied an adapted

version of the McDonnell Douglas prima facie case framework to an age-



context, Aikens makes clear that the ultimate issue to be determined in discrimination

cases is simply whether discrimination occurred. See id. (“A more accurate definition

of the phrase as frequently used in American legal writing is ‘or the lack of them (or of

it).’ Usually the phrase is pretentious surplusage, since it can either be deleted or

translated into simpler words—e.g.: . . . ‘The ultimate issue, that of discrimination vel

non [omit], is to be treated by district and appellate courts in the same manner as any

other issue of fact.’ Williams v. Southwestern Bell Tel. Co., 718 F.2d 715, 717 (5th Cir.

1983).”).

30

discrimination claim.56 In Williams, a former employee of Wal-Mart, Linda

Williams, filed a discrimination suit against the corporation, alleging violation

of several provisions of the Kentucky Civil Rights Act.57 Williams resigned from

the corporation after it accused her of stealing bottled water from the store, but

she testified that Wal-Mart forced her to resign by threatening her with jail



56 Williams, 184 S.W.3d at 495. It is necessary here to clarify the continue

validity of Williams. In Williams v. Wal-Mart Stores, Inc., this Court explained that

Kentucky “interpret[s] the civil rights provisions of KRS Chapter 344 consistent with

the applicable federal anti-discrimination laws.” Id. (citing Brooks v. Lexington–Fayette

Urban County Hous. Auth., 132 S.W.3d 790, 802 (Ky. 2004), Howard Baer, Inc. v.

Schave, 127 S.W.3d 589, 592 (Ky. 2003), Bank One, Kentucky, N.A. v. Murphy, 52

S.W.3d 540, 544 (Ky. 2001), and Ammerman v. Bd. of Educ., 30 S.W.3d 793, 797–98

(Ky. 2000)). The Williams court further explained that “[a]ge discrimination cases

under the Federal Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–

634, are analyzed under the same framework as employment discrimination cases

under Title VII.” Id. While the parties in this case do not dispute this proposition, we

find it necessary to note that the case relied on by the Williams court in supporting

this proposition, Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003), has

since been called into question by the United States Supreme Court’s decisions in

O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307, 134 L. Ed. 2d

433 (1996), and Gross v. FBL Fin. Serv., Inc., 557 U.S. 167, 129 S. Ct. 2343, 2349, 174

L. Ed. 2d 119 (2009). In O’Connor, the Supreme Court stated that it has not “had

occasion to decide whether that application of the Title VII rule to the ADEA context is

correct, but since the parties do not contest that point, we shall assume it.” 517 U.S.

at 311, 116 S. Ct. at 1310, 134 L. Ed. 2d 433. Similarly, the Supreme Court in Gross

stated that it “has not definitively decided whether the evidentiary framework of

McDonnell Douglas Corp. v. Green, . . . utilized in Title VII cases is appropriate in the

ADEA context.” 557 U.S. at 175 n.2., 129 S. Ct. at 2349, 174 L. Ed. 2d 119 (citations

omitted). Despite these statements, other federal courts have continued to apply the

McDonnell Douglas paradigm in analyzing age-discrimination claims brought under

the ADEA. See, e.g., Scheick v. Tecumseh Pub. School, 766 F.3d 523, 529 (6th Cir.

2014) (“[A]pplication of the McDonnell Douglas evidentiary framework to prove ADEA

claims based on circumstantial evidence remains consistent with Gross.”). In absence

of a final word by the United States Supreme Court on this issue, and since the

parties in this case do not dispute whether the McDonnell Douglas framework applies

to Disselkamp’s age-discrimination case at some stage, we mirror the United States

Supreme Court and assume for the purposes of this case that it does.

57 Williams, 184 S.W.3d at 494. As the Williams court explained, “[b]ecause of a

medical condition, it was necessary for Williams to take medicine at various times

throughout her workday. Her doctor also recommended that her prescription be taken

with sodium-free water. Initially, Williams brought sodium-free water from home and

left it in the employee's lounge. However, because other employees sometimes drank

the water or threw it away, Williams decided it would be simpler to purchase water at

the store as she needed it.” Id.

31

time.58 Williams was 56 years old when she resigned.59 Following a jury trial on

Williams’s age-discrimination claim, judgment was entered in her favor.60 The

Court of Appeals reversed the trial court, finding that Williams failed to present

sufficient evidence to satisfy the elements of an age-discrimination claim.61

This Court ultimately affirmed the Court of Appeals, holding that Williams

failed to prove she was the victim of age discrimination.62

In applying KRS 344.010(1) consistently “with the applicable federal antidiscrimination laws,” including Title VII and the ADEA,63 this Court established

in Williams:

There are two paths for a plaintiff seeking to establish an age

discrimination case. One path consists of direct evidence of

discriminatory animus. Absent direct evidence of discrimination,

Plaintiff must satisfy the burden-shifting test of McDonnell

Douglas[]. . . . The reasoning behind the McDonnell Douglas burden

shifting approach is to allow a victim of discrimination to establish

a case through inferential and circumstantial proof. As Justice

O'Connor has noted, “the 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.” If a plaintiff

attempts to prove its case using the McDonnell Douglas framework,

then the plaintiff is not required to introduce direct evidence of

discrimination. Under the McDonnell Douglas framework a plaintiff

can establish a prima facie case of age discrimination by proving

that he or she: (1) was a member of a protected class, (2) was

discharged, (3) was qualified for the position from which they were

discharged, and (4) was replaced by a person outside the protected

class. In age discrimination cases the fourth element is modified to

require replacement not by a person outside the protected class,

but replacement by a significantly younger person. . . . Once the

plaintiff has established a prima facie case, the burden shifts to

the employer to articulate a “legitimate nondiscriminatory reason”



58 Id. at 495 n.2.

59 Id. at 494.

60 Id.

61 Id.

62 Id.

63 Id. at 495.

32

for the termination decision. . . . After a defendant has provided a

legitimate, nondiscriminatory reason for the termination, the

McDonnell Douglas framework disappears. At this point, the

plaintiff must persuade the trier of fact, by a preponderance of the

evidence, that the defendant unlawfully discriminated against

her.64

In analyzing first whether Williams satisfied her burden of proving a

prima facie case of age discrimination, the Williams court only focused on the

final element because it was undisputed that Williams provided sufficient proof

of the first three elements.65 The Court found that the element was satisfied

because Williams provided evidence that she was replaced “by an individual

who is significantly younger than” she was at the time she separated from

Walmart because all sixteen people who were hired after Williams left were at

least eight years younger than she, and all but three were under age 40.

66 But

the Court declined to settle the precise issue as to “how many years younger a

replacement has to be in order to satisfy the significantly-younger requirement”

because “[q]uite simply, when the evidence at trial is viewed in the light most

favorable to Williams, it establishes that she was replaced by at least one of

these substantially younger individuals.”67 The Williams court further found

that Wal-Mart had satisfied its rebuttal burden of production by showing that

it had a legitimate, nondiscriminatory reason for forcing Williams to resign, by

showing that it had “strict polic[ies]” against “employees taking merchandise

without first paying for it and that a violation of the policy resulted in



64 Williams, 184 S.W.3d at 495–97 (citations omitted).

65 Id. at 496.

66 Id. (emphasis added).

67 Id. at 496–97.

33

immediate termination,” and against allowing employees to “purchase

merchandise while ‘on the clock.’”68

Since the McDonnell Douglas framework had disappeared at this point,

the Williams court discussed the evidence presented by Williams to show that

“the employer's stated reason for the termination was merely a pretext,

masking the discriminatory motive.”69 While the Williams court disagreed with

the Court of Appeals and found that Williams provided enough evidence,

admittedly “weak,” to satisfy at least one of the “three methods for establishing

pretext,”70 the Court made clear that a plaintiff's success in establishing a

prima facie case and providing evidence of a pretext does not always mean the

plaintiff has presented evidence sufficient to survive a motion for a directed

verdict if it is clear that the evidence would still not be enough to sustain a

jury’s finding of liability.71 The Williams court ultimately held that even though

the parties had satisfied their respective evidentiary burdens, Wal-Mart’s

motion for a directed verdict should have been granted because no “rational

trier of fact [could] conclude that Wal-Mart had unlawfully discriminated

against Williams because of her age” based on the complete absence of



68 Id. at 497.

69 Id.

70 Id. (“In Manzer v. Diamond Shamrock Chems., Co., 29 F.3d 1078, 1083 (6th

Cir. 1994)], the court listed three methods for establishing pretext: (1) the proffered

reasons are false; (2) the proffered reasons did not actually motivate the decision; and

(3) the plaintiff could show that the reasons given were insufficient to motivate the

decision.”).

71 Id. at 499 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

148–49, 120 S. Ct. 2097, 2109, 147 L. Ed. 2d 105 (2000)).

34

evidence that the person solely responsible for Williams’s termination actually

knew of her age.72

This Court has discussed Williams in three cases since rendering it.

73

The parties in the case at hand rely only on one these decisions, Childers Oil v.

Adkins,

74 in their arguments for or against the propriety of the jury instruction

under discussion.75 Norton also directs us to the unpublished Court of

Appeals’ decision in Stauble v. Montgomery Imports, LLC76 in support of its



72 Id. at 498–99 (explaining Supreme Court’s decisions in St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), wherein “the

Supreme Court rejected the ‘pretext plus’ and ‘pretext only’ approaches in favor of the

‘permissive pretext only’ standard and held that it was permissible, but not

mandatory, for the trier of fact to make an ultimate finding of intentional

discrimination once the plaintiff has established pretext.) The Williams court

explained, however, that these cases are not always required to be submitted to the

jury based on the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 148-49, 120 S. Ct. 2097, 2109, 147 L. Ed. 2d 105 (2000), wherein

the Court stated that “a plaintiff's prima facie case, combined with sufficient evidence

to find that the employer's asserted justification is false, may permit the trier of fact to

conclude that the employer unlawfully discriminated. This is not to say that such a

showing by the plaintiff will always be adequate to sustain a jury's finding of liability.

There will be instances where, although the plaintiff has established a prima facie case

and set forth sufficient evidence to reject the defendant's explanation, no rational

factfinder could conclude that the action was discriminatory.” Id. at 499–500.

73 See Charalambakis v. Asbury Univ., 488 S.W.3d 568 (Ky. 2016); Childers Oil

Co. v. Adkins, 256 S.W.3d 19 (Ky. 2008); Commonwealth v. Solly, 253 S.W.3d 537 (Ky.

2008).

74 256 S.W.3d 19.

75 It is likely that the parties in this case did not rely on the other two cases

because they are not age-discrimination cases and thus do not discuss the

substantially-younger requirement of McDonnell Douglas that is at issue in this case.

See Charalambakis, 488 S.W.3d at 580 (affirming the circuit court’s grant of summary

judgment in favor of the defendant based on the finding that the plaintiff “failed to

demonstrate under the McDonnell Douglas burden shifting analysis that his

circumstantial evidence of discriminatory treatment is sufficient to disprove

[defendant’s] proffered reasons for its disciplinary decisions[]”); Solly, 253 S.W.3d at

540 (affirming the Franklin Circuit Court’s finding that the administrative hearing

office correctly found that the plaintiff’s sex-discrimination claim “did not state a

prima facie case of discrimination and that the reasons given for the nonrenewal were

not pretextual[]”).

76 No. 2005–CA–001967, 2011 WL 2119364, at *1 (Ky. App. May 27, 2011).

35

argument that jury instructions for age-discrimination claims commonly

include elements of the McDonnell Douglas framework for establishing a prima

facie case. We agree with Norton that this Court’s decision in Childers Oil and

the Court of Appeals’ unreported decision in Stauble merit discussion, but we

do note that both cases are distinguishable from the present case. There is no

evidence that the trial court in Childers Oil submitted jury instructions that

included the McDonnell Douglas elements, and the only discussion of the jury

instructions concerns the propriety of the instruction on punitive damages.77

Similarly, jury instructions were not at issue in Stauble because that case was

dismissed before trial.

In Childers Oil Co., a former employee, 47-year-old Bertha Adkins, of

Defendant Childers Oil filed an age-discrimination claim after she was

terminated from her job.

78 On discretionary review in this Court, we

considered, in part, whether the trial court erred when it declined to grant

Childers Oil’s motion for a directed verdict. The primary claim made by

Childers Oil was that the trial court erred in denying its motion for a directed

verdict because Adkins failed to provide proof that she was replaced by a

“significantly younger” employee.

79

In Childers Oil we agreed with the Court of Appeals that the trial court

did not err in denying Childers Oil’s motion for a directed verdict based on the

evidence presented at trial that management “had made a deliberate decision



77 Childers Oil Co., 256 S.W.3d at 22.

78 Id.

79 Id. at 26–27.

36

to seek to place young females at the cash registers.”80 Testimony presented to

the jury at trial showed that the manager told another employee that “the

company wanted pretty, young girls up front to draw in truck drivers and the

‘young ones' went ‘up there.’”81 Furthermore, trial evidence showed that one

young female was hired only eleven days before Adkins was terminated, and

five other people, all of whom were more than ten years younger than Adkins,

were hired shortly after Adkins was discharged.82

In Stauble, the Court of Appeals affirmed the trial court’s grant of

Defendant Montgomery Imports’s motion for summary judgment in Plaintiff

Gary Stauble’s age-discrimination claim.83 Stauble filed the age-discrimination

claim after he, at age 49, was first demoted from his position as service

manager to parts manager and replaced by an individual who was in his late

20s or early 30s, and then terminated and replaced by an individual who was

40 years old.84 On appeal, the parties disputed whether Stauble provided

sufficient evidence to establish several of the elements.85 In its discussion of

the substantially-younger element, the Court of Appeals found that both the

20-year age difference between Stauble and the employee who replaced him

when he was demoted, and the nine year age difference between Stauble and



80 Id.

81 Id.

82 Id. The Childers Oil court also found that Adkins presented sufficient

evidence to allow the jury to conclude that that Childers stated reason for termination,

that the store was closing soon and no longer needed Adkins’s services, was a mere

pretext. Id. at 26.

83 2011 WL 2119364, at *1

84 Id.

85 Id., at *3–4.

37

the employee who replaced him when he was terminated were sufficient to

present a “fact question for the jury.”86 Ultimately, the Court of Appeals found

that Stauble presented sufficient evidence to make out a prima facie case of age

discrimination, but summary judgment in favor of Montgomery Imports was

still proper because Stauble failed to present sufficient evidence that

Montgomery Imports’s proffered reason for demoting and terminating Stauble

was merely a pretext.87

Based on these Kentucky cases, we draw some further conclusions.

First, Kentucky courts have embraced and affirmed the United States Supreme

Court’s assertions that McDonnell Douglas established a burden-shifting

framework, and that in all discrimination cases the ultimate question is

whether the defendant unlawfully discriminated against the plaintiff. Second,

neither the United States Supreme Court, this Court, nor any other Kentucky

court has considered whether the McDonnell Douglas framework, an admittedly

factual inquiry, is to be decided by the judge or the jury in Kentucky Civil

Rights Act cases. In fact, and unlike the Supreme Court of the United States, it

seems that this Court has never had the occasion to express an opinion about

the potential propriety of including the elements of the framework in juryinstructions in these cases. With these additional preliminary thoughts in

mind, we now turn to Kentucky’s rule regarding jury instructions because this



86 Id., at *4. (“In Cicero v. Borg–Warner Automotive, Inc., 280 F.3d 579, 588 (6th

Cir. 2002), the United States Sixth Circuit Court of Appeals held that deciding whether

an age difference of seven and one-half years is significant is a question of fact for the

jury. . . . See [also] Grosjean v. First Energy Corp., 349 F.3d 332, 336 (6th Cir. 2003)

(noting that “[a]ge differences of ten or more years have generally been held to be

sufficiently substantial . . . ’’).”).

87 Id., at *4–5, 7.

38

issue is critical in determining whether the elements of the McDonnell Douglas

framework may properly be included in Kentucky jury instructions.

d. Kentucky’s “Bare Bones” Approach to Jury Instructions

As the Court of Appeals in this case correctly noted, Kentucky long-ago

adopted a bare-bones approach to jury instructions. This Court has explained

this approach as demanding that jury instructions “provide only the bare

bones, which can be fleshed out by counsel in their closing arguments if they

so desire.”88 As this Court established in Meyers v. Chapman Printing Co.,

bare-bones instructions means those that simply frame “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.”89 This interpretation of bare-bones was reaffirmed

in Olfice, Inc. v. Wilkey, wherein this Court stated that “‘[t]he basic function of

instructions in Kentucky is to tell the jury what it must believe from the

evidence in order to resolve each dispositive factual issue in favor of the party

who bears the burden of proof on that issue.’”90 In an effort to clarify further

the bare-bones standard for jury instructions, this Court established in Mason

v. Commonwealth established that bare-bones instructions do not include

unnecessary detail such as evidentiary presumptions.91 As the Mason case



88 Cox v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974).

89 840 S.W.2d at 824.

90 173 S.W.3d 226, 229 (Ky. 2005) (quoting Justice Charles M. Leibson, “Legal

Malpractice Cases: Special Problems in Identifying Issues of Law and Fact and in the

Use of Expert Testimony,” 75 Ky. L.J. 1, 40 (1986) (quoting John S. Palmore, Kentucky

Instructions to Juries, § 13.01 (1977))).

91 565 S.W.2d 140, 141 (Ky. 1978). See also Meyers, 840 S.W.2d at 824 (“In

Kentucky jury instructions do not include evidentiary presumptions. Such

presumptions alter the burden of going forward with the evidence, and thus may

result in a directed verdict in the absence of countervailing evidence.”).

39

explained, evidentiary presumptions should not be included in Kentucky jury

instructions because presumptions, by their nature, are “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[.]”92 The Mason court went on to state

that the instructions must still include “[a]ll essential aspects of the law

necessary to decide the case . . . .”93 These cases essentially mean that trial

courts are called upon to engage in a balancing effort to ensure that jury

instructions in Kentucky provide only the bare minimum necessary to ensure

that the jury understands the ultimate issue of fact to be decided in any case,

but still provide enough law and background knowledge so that the jury comes

to a decision that is supported by law.

Merely failing to adhere to the bare-bones approach, however, is

generally not enough to justify a new trial under our jurisprudence. When a

Kentucky appellate court is confronted with a challenge to a jury instruction

based on the content of the instruction, the appellate court must consider

whether the instruction “misstated the law by failing to sufficiently advise the

jury ‘what it [had to] believe from the evidence in order to return a verdict in

favor of the party who [had] the burden of proof.’”94 If the appellate court finds

that the challenged jury instruction did misstate the law, a presumption of



92 Id. Recall that the United States Supreme Court in Vance noted that other

courts have expressed similar disfavor in including some presumptions in jury

instructions. The Vance court stated that “[c]ourts and commentators alike have

opined on the need for reasonably clear jury instructions in employment

discrimination cases. And the danger of juror confusion is particularly high where the

jury is faced with instructions on alternative theories of liability under which different

parties bear the burden of proof.” 570 U.S. at 444–45 (citations omitted).

93 Mason, 565 S.W.2d at 141.

94 Wilkey, 173 S.W.3d at 230 (quoting Meyers, 840 S.W.2d at 823).

40

prejudice arises and the challenging party is entitled to a new trial unless the

responding party is able to show affirmatively that the error did not affect the

verdict.95 In contrast, if the appellate court finds that the jury instructions did

not misstate the law, no presumption of prejudice arises and the complaining

party is only entitled to a new trial if she is able affirmatively to show prejudice,

meaning that the error affected the verdict.

e. Rule and Application of these Principles to Disselkamp’s case

Upon careful review, we hold that the substantially-younger requirement

issue must be decided by the trial court after considering the parties’ evidence.

In other words, it is a misstatement of law to include the substantially-younger

element of the McDonnell Douglas framework into jury instructions submitted

in age-discrimination cases that are based on circumstantial evidence. As

explained in more detail below, this holding furthers the purpose of the

Kentucky Civil Rights Act, is supported by the case law discussed above, and

avoids illogical and unjust results that could arise were we to adopt the

position advanced by Nortons.

First, by holding that the trial court, and not the jury, must make the

determination about whether age-discrimination plaintiffs satisfy their initial

burden under the McDonnell Douglas framework, this Court ensures that the

statutory purposes of the Kentucky Civil Rights Act are not undermined by



95 McKinney v. Heisel, 947 S.W.2d 32, 35 (Ky. 1997). See also Harp v.

Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008) (“But a party claiming that an

erroneous jury instruction, or an erroneous failure to give a necessary jury

instruction, bears a steep burden because we have held that ‘[i]n this jurisdiction it is

a rule of longstanding and frequent repetition that erroneous instructions to the jury

are presumed to be prejudicial; that an appellee claiming harmless error bears the

burden of showing affirmatively that no prejudice resulted from the error.’”) (quoting

McKinney, 947 S.W.2d at 35).

41

incorporating additional elements the jury is required to believe to find in favor

of the plaintiff. To be entitled to relief under KRS 344.040(1)(a), a plaintiff is

required to convince the jury that the plaintiff’s employer terminated or

otherwise discriminated against the plaintiff because of the plaintiff’s age and

that the plaintiff was age 40 or over. Recall the General Assembly’s articulated

reasons for making it unlawful to discriminate against an individual based on

age under the Kentucky Civil Rights Act: to incorporate and uphold the antidiscrimination policies of the Federal Civil Rights Act;96 and “[t]o safeguard all

individuals within the state from discrimination because of . . . age forty (40)

and over, [and] thereby to protect their interest in personal dignity and freedom

from humiliation.”97 KRS Chapter 344 also provides that the chapter “shall be

construed to further the general purposes stated in this section and the special

purposes of the particular provision involved.”98

The substantially-younger requirement is not codified in any part of KRS

Chapter 344; it is simply an element that a plaintiff is required to provide

evidence in support of, before the case is submitted to the jury, in cases in

which the plaintiff is attempting to prove unlawful discrimination with

circumstantial evidence. Furthermore, it is undisputed that this Court has

found that the substantially-younger requirement was satisfied in cases where

the age gap between the plaintiff and the individual who replaced the plaintiff

upon termination was narrower than the age gap between Disselkamp and the



96 KRS 344.020(1)(a).

97 KRS 344.020(1)(b).

98 KRS 344.020(2).

42

individual she argued replaced her.99 Disselkamp’s claimed replacement,

Meyers, was twelve years younger than she, and Norton points this Court to no

evidence that disputes Disselkamp’s arguments that she was replaced by

Meyers. By submitting the substantially-younger element to the jury in

Disselkamp’s case, the trial court essentially incorporated an additional

element the jury was required to find as true to find for Disselkamp.

Our holding today also follows the United States Supreme Court’s, this

Court’s, and other federal courts’ established principle that that the ultimate

issue to be determined by the jury in civil rights cases is whether the defendant

engaged in unlawful discrimination.100 Recall the Aikens court’s explanation

that the McDonnell Douglas framework was never meant to be applied

“ritualistically;” rather it was simply meant to establish “a sensible, orderly way

to evaluate the evidence in light of common experience as it bears on the

critical question of discrimination.”101 As this Court stated in Williams, the

framework drops from the case after it has been decided that the plaintiff has

established a prima facie case of age discrimination and the defendant



99 Disselkamp was 60 years old at the time Norton terminated her employment,

and she was replaced by 48-year-old Michele Meyers. In Williams, this Court found

that the plaintiff had provided sufficient evidence to prove the substantially younger

requirement because Plaintiff Williams was 56-years-old when she resigned and all

sixteen people who were hired after Williams left were at least eight years younger

than her. In Childers Oil Co., this Court found that the plaintiff had provided sufficient

proof that she was replaced by a substantially younger employee when she was

terminated at age 47 and was replaced by individuals who were all more than ten

years younger.

100 See, e.g., Aikens, 460 U.S. at 713-14 (“Because this case was fully tried on

the merits, it is surprising to find the parties and the Court of Appeals still addressing

the question whether Aikens made out a prima facie case. We think that by framing

the issue in these terms, they have unnecessarily evaded the ultimate question of

discrimination vel non.”).

101 Id. at 715.

43

responds by offering a legitimate, non-discriminatory reason for the adverse

action against the employee. It would be inconsistent to now hold that while

the framework “drops out” after the parties meet their respective burdens, the

fourth element of the prima facie case can nonetheless be submitted once more

to the jury to determine if it agrees with the trial court’s determination.

Finally, today’s holding comports with our bare-bones approach to jury

instructions. So, instructing the jury on the substantially-younger element of

the McDonnell Douglas prima facie case is not necessary to instruct the jury as

to “[a]ll essential aspects of the law necessary to decide the case . . . .”102 If we

were to allow such inclusion, we would be moving past simply establishing a

gatekeeping function to ensure only meritorious age discrimination claims that

are based on circumstantial evidence are submitted to the jury; instead, we

would be reading into KRS 344.040 additional elements of age discrimination

that the statute does not require.

f. Harmlessness of the Instructional Error

Our determination that the jury instruction in the present case misstates

the law does not end our analysis. Even though we conclude that jury

instructions in the present case misstated the law, giving rise to a presumption

that this error prejudiced Disselkamp by affecting the verdict, we must

determine if Norton is correct that the misstatement of the law was harmless

because it was a mere redundancy, as neither party disputes that Disselkamp

was required to present evidence tending to prove the substantially-younger

requirement to survive directed verdict. As explained in more detail below,



102 Mason, 565 S.W.2d at 141.

44

however, when we consider the consequences of finding that the instructional

error did not prejudice Disselkamp, it becomes clear that Norton has failed to

prove that the instructional error did not prejudice Disselkamp.

Again, the substantially-younger element has been found to be satisfied

in cases were the plaintiffs were replaced by an employee who was eight years

and ten years younger than the plaintiffs. In reliance on this precedent,

Disselkamp was justified in assuming that the 12-year age difference between

herself and the employee who arguably replaced her was more than enough to

satisfy the requirement.

As provided above, the age-discrimination jury instruction submitted in

Disselkamp’s case stated that the jury could find in favor of Disselkamp if it

found all of the following to be true: “[1] Disselkamp’s employment was

terminated; [2] Disselkamp was age 40 or over on the date of termination; [3]

[Disselkamp was otherwise qualified for her employment position;] [4]

Disselkamp’s age (60) was a substantial motivating factor in Norton’s decision

to terminate her employment; [5] AND Disselkamp was replaced by a

substantially younger person.” It would have been unreasonable for the jury to

conclude, considering the evidence presented at trial, that Disselkamp failed to

satisfy the first three requirements, which leaves disputed questions as to

whether Disselkamp satisfied the final two elements. It is possible that the jury

found that Disselkamp’s age (60) was not a substantial motivating factor in

Norton’s decision to terminate her employment, and she was not replaced by a

substantially younger person. It is also possible, that the jury found that

Disselkamp’s age (60) was not a substantial motivating factor in Norton’s

decision to terminate her employment, but she was replaced by a substantially

45

younger person. Moreover, it is possible that the jury could have found that

Disselkamp’s age (60) was a substantial motivating factor in Norton’s decision

to terminate her employment, but she was not replaced by a substantially

younger person. Under any of the possible scenarios, Disselkamp’s agediscrimination claim would fail, but there is no way to determine under which

scenario the jury was operating in rendering the verdict in Norton’s favor.

Under the first two scenarios, the failure of Disselkamp’s claim is not

problematic, much less unjust. But under the third scenario, the prohibitions

and purposes provided under the Kentucky Civil Rights Act would be

frustrated. Under the third scenario, despite the jury’s finding that

Disselkamp’s age was a motivating factor in Norton’s decision to terminate her,

which is exactly the conduct expressly prohibited under KRS 344.040, the jury

would still be required to find in favor of Norton because they did not find, for

whatever reason, that Disselkamp was not replaced by a substantially younger

person. That result would undermine the Kentucky Civil Rights Act’s purpose

“[t]o safeguard all individuals within the state from discrimination because of . .

. age forty (40) and over, [and] thereby to protect their interest in personal

dignity and freedom from humiliation,” and would be a miscarriage of justice.

Because there is no way to tell which scenario occurred when the jury in the

present case found in favor of Norton, the inclusion of the substantiallyyounger requirement in the age discrimination jury instructions prejudiced

Disselkamp.

g. Direction on Remand

In sum, the Kentucky and Federal Civil Rights Acts, the Supreme

Court’s, and this Court’s precedent concerning the Kentucky Civil Rights Act

46

and Kentucky’s unique requirements regarding bare-bones jury instructions

support holding that the substantially-younger requirement of the McDonnell

Douglas prima facie case is an issue that must be decided by the trial court. In

other words, it is a misstatement of law to submit the substantially-younger

determination to the jury in discrimination cases based on circumstantial

evidence. As such, the misstatement of law in Disselkamp’s age-discrimination

jury instructions, which was prejudicial, justifies vacating the jury’s verdict

with respect to this claim and remanding the claim back to the trial court to

conduct further proceedings consistent with this opinion.

There is no question that Disselkamp satisfied the first three elements of

the McDonnell Douglas prima facie case as it was articulated in Williams.

103

Disselkamp provided undisputed testimony that she was terminated by Norton

when she was 60 years old and that she was qualified for the position from

which she was discharged. Disselkamp also provided sufficient evidence to

allow the trial court to find that her replacement, if the trial court believed it

was Meyers who replaced Disselkamp, was substantially younger. There is also

no question that Norton satisfied its burden of production to show that it had a

legitimate, nondiscriminatory reason for terminating Disselkamp, given the

documented evidence that Norton’s stated reason for firing Disselkamp was

based on its belief that Disselkamp falsified data used to support the

conclusions made in the QMT report she submitted to her supervisor. At this

point, the McDonnell Douglas framework “disappears,” and Disselkamp must

show that the stated reason was merely a pretext.



103 184 S.W.3d at 495–97 (citations omitted).

47

On remand, if the evidence presented by the parties is substantially the

same, which includes relevant evidence discussed elsewhere in this opinion,

the trial court would be justified in finding that both parties satisfied their

respective burdens established under the McDonnell Douglas framework, and

submitting the case to the jury. A proper jury instruction on remand would not

include the substantially-younger element but could state something like: “You

will find for the Plaintiff under this instruction if you are satisfied from the

evidence that the Defendant’s decision to terminate Plaintiff’s employment was

because of Plaintiff’s age.104 Otherwise you will find for Defendant under this

instruction.”

3. Jury Instructions for Disselkamp’s Retaliation Claim.

Disselkamp argues on her cross-appeal for discretionary review that the

Court of Appeals’ opinion should be reversed insofar as it finds that the

retaliation instruction did not misstate the law by including Tracy Patton’s

name among the list of potential retaliators. As explained above, Disselkamp

properly preserved this issue for appeal and, as such, the standard of review is

de novo. The retaliation instruction as submitted to the jury provided that the

jury could return a verdict in Disselkamp’s favor if it found that:



104 Based on the United States Supreme Court’s interpretation of the phrase

“because of” in the ADEA to mean “the plaintiff retains the burden of persuasion to

establish that age was the ‘but-for’ cause of the employer's adverse action,” it is

questionable whether the jury instruction submitted for Disselkamp’s age was a

proper statement of Kentucky law based solely on its requirement that the jury find

that “Disselkamp’s age (60) was a substantial motivating factor in Norton’s decision to

terminate her employment.” See Gross, 557 U.S. at 176. KRS 344.040(1)(a) states, like

the ADEA, that it is unlawful for an employer “to discharge any individual . . . because

of the individual's . . . age forty (40) and over . . . .” (emphasis added). However, we are

without authority to determine this issue because the parties do not dispute this part

of the jury instruction.

48

• Disselkamp engaged in a protected activity, i.e., complained to

Norton in good faith, about harassment and gender discrimination

by Kevin Hendrickson;

• Richard Shilling, 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.

Disselkamp argues that by including Patton’s name among the list of

potential retaliators the trial court impermissibly “commented on the evidence

and inserted another potential retaliator that the jury well knew had no motive

to terminate Ms. Disselkamp,” and Norton was then allowed to take “full

advantage” of this alleged error by making statements during closing

arguments that, as Disselkamp puts it, Patton had no motivation to retaliate

against Disselkamp, “so there was no possibility that retaliation occurred.”

Norton responds that the instruction correctly stated the law by

including all the elements required to be successful in a retaliation claim

brought under KRS 344.280(1), and any error in including Patton’s name in

the retaliation jury instruction was harmless because the instruction merely

listed Patton as one of three individuals the jury could find retaliated against

Disselkamp. The Court of Appeals agreed with Norton, and so do we. As Norton

points out, and Disselkamp does not dispute, the retaliation jury instructions

clearly did not misstate any of the law explained above, and based on the

language of the jury instructions, this assertion is correct. In fact, Disselkamp

failed to direct our attention to any authority, binding or persuasive, that

would support an alternate holding.

49

KRS 344.280(1) governs Disselkamp’s retaliation claim. The statute

provides that “[i]t shall be an unlawful practice for a person . . . :(1) To retaliate

or discriminate in any manner against a person because he has opposed a

practice declared unlawful by this chapter, or because he has made a charge,

filed a complaint, testified, assisted, or participated in any manner in any

investigation, proceeding, or hearing under this chapter[.]” Disselkamp’s theory

at trial was that Bischoff and Shilling fired her in retaliation for Disselkamp’s

formal complaints made against her former supervisor, Hendrickson, for

gender discrimination and harassment.

As we explained in Charalambaskis v. Asbury University, “[a] claim for

unlawful retaliation requires the plaintiff to first establish a prima facie case of

retaliation, which consists of showing that (1) she engaged in a protected

activity, (2) she was disadvantaged by an act of her employer, and (3) there was

a causal connection between the activity engaged in and the [defendant]

employer's act.”105 Furthermore, as the Court of Appeals noted, to prove the

casual-connection element with circumstantial evidence, in most cases, this

plaintiff is required to present proof that “(1) the decision-maker responsible for

making the adverse decision was aware of the protected activity at the time

that the adverse decision was made, and (2) there is a close temporal

relationship between the protected activity and the adverse action.”106



105 488 S.W.3d 568, 583 (Ky. 2016) (internal quotations omitted). See also

Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846, 851–52 (Ky. 2016).

106 Kentucky Dep't of Corr. v. McCullough, 123 S.W.3d 130, 135 (Ky. 2003), as

modified on denial of reh'g (Jan. 22, 2004) (citing Clark County School District v.

Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511, 149 L. Ed. 2d 509, 515 (2001)).

50

Even assuming for the present case that including Patton’s name in the

retaliation instruction was an error, Norton successfully proved that the error

did not prejudice Disselkamp because the error was harmless. As the Court of

Appeals correctly found, the retaliation jury instruction was harmless because

use of the word “or” rendered it unnecessary for the jury to make any finding

that Patton specifically knew of Disselkamp’s protected conduct in complaining

about her former supervisor’s alleged harassment or gender discrimination, or

that Patton made the decision to terminate Disselkamp in retaliation for this

protected conduct. Furthermore, there was evidence in the record to support

the trial court’s inclusion of Patton’s name in the retaliation jury instruction—

Disselkamp testified that Patton was one of the three people who made the

decision to terminate her and Disselkamp’s Complaint named Patton as a

retaliator— despite Disselkamp’s later position that Patton was simply being

used as a “rubber stamp” by Bischoff and Shilling to terminate Disselkamp.

In sum, the trial court did not err in including Patton’s name in the list

of potential individuals that the jury could find unlawfully retaliated against

Disselkamp. As such, Disselkamp is entitled to no relief from the jury’s verdict

in favor of Norton on Disselkamp’s retaliation claim.

B. Disselkamp’s Requested Spoliation Instruction.

The final issue raised by Disselkamp is that the Court of Appeals erred

by finding that the trial court did not abuse its discretion in denying

Disselkamp’s request for a missing-evidence, or spoliation, instruction.

Disselkamp specifically argues that she was entitled to a spoliation instruction

on “four key categories of evidence” because “spoliation was rampant in this

case.”

51

The “four key categories of evidence” that Disselkamp points to are: (1)

the emails Norton referenced in its CAR report terminating Disselkamp; (2) the

Ultrasound Observation Report Norton claimed that Disselkamp falsified as the

stated reason for Disselkamp’s termination; (3) Disselkamp’s QMT binder; and

(4) the handwritten piece of paper that Bischoff allegedly showed to a Norton

technologist in the days following Disselkamp’s termination.

Disselkamp made repeated pretrial requests, both formally and

informally, that Norton produce all four categories of evidence, and the trial

court ultimately entered an order compelling Norton to produce the evidence.

But Norton did not produce any of the evidence, explaining after the trial court

compelled disclosure that the items requested, including the QMT binder,

could not be found or were destroyed due to “reasonably necessary information

purge procedures.” We agree with the Court of Appeals that the trial court did

not abuse its discretion in declining to give a missing-evidence jury instruction

based on any of the four categories of missing evidence relied on by

Disselkamp.

“Trial courts are vested with discretion in deciding what admonitions and

instructions to the jury are appropriate under the evidence and attendant

circumstances.’’

107 Our standard of appellate review is for abuse of

discretion.108 A party is entitled to a missing evidence, or spoliation, instruction

where “‘significant evidence was forever lost’” to the prejudice of the party.109 In



107 Beglin, 375 S.W.3d at 790 (citing Harris v. Commonwealth, 313 S.W.3d 40,

50 (Ky. 2010)).

108 Id. at 790–91

109 Estep v. Commonwealth, 64 S.W.3d 805, 809 (Ky. 2002) (quoting Tinsley v.

Jackson, 771 S.W.2d 331, 332 (Ky. 1989)).

52

the realm of civil cases, this Court has not had many opportunities to explain

when a party is entitled to a missing-evidence instruction. In fact, the only

modern case this Court has decided that is relevant to a missing-evidence

instruction is University Medical Center v. Beglin.

In Beglin, we first reaffirmed that the “approved” missing-evidence

instruction is one that “sets forth the elements necessary to permit a jury to

draw an adverse inference from missing evidence.”110 In establishing “the

evidentiary prerequisite for giving the instruction when potentially relevant

evidence is inexplicably unavailable,” we rejected the assertion “that direct and

conclusive evidence of intentional and bad faith destruction as pre-determined

by the trial court are absolute prerequisites for obtaining the instruction.”111

While in Beglin we did not articulate an exact standard by which to determine

when a party is entitled to a missing-evidence instruction,112 we did provide

examples of circumstances when a missing-evidence instruction is not

authorized and provided some guidance as to when a trial court would be

authorized to give a missing-evidence instruction. In Beglin, we established

that a missing-evidence instruction should not be given “when the proof shows



110 Beglin, 375 S.W.3d at 788 (citing Sanborn v. Commonwealth, 754 S.W.2d

534, 540 n.3 (Ky. 1988) (“If you find from the evidence that there existed a tape

recording. . . and that the state intentionally destroyed the tape recording, you may,

but are not required to, infer that the information contained on the tape recording

would be, if available, adverse to the state and favorable to the defendant.” (citing

State v. Maniccia, 355 N.W.2d 256, 259 (Iowa App. 1984))).

111 Id. at 789.

112 In fact, the Beglin court explicitly declined to adopt “a special rule for

measuring the quantum or quality of evidence that will authorize a missing evidence

instruction.” Id. at 790. Instead, the Beglin court opted for a flexible standard that

grants wide discretion to the trial court.

53

that the evidence was lost as a result of ‘mere negligence[,]’”113 nor where

evidence was lost “as a result of fire, weather, natural disaster, other

calamities, or destruction in the normal course of file maintenance, particularly

in accordance with industry or regulatory standards.”114 We essentially

explained that, apart from the above circumstances, the trial court is within its

discretion to give a missing-evidence instruction when: (1) the evidence is

material or relevant to an issue in the case; (2) the opponent had “absolute

care, custody, and control over the evidence;” (3) the opponent was on notice

that the evidence was relevant at the time he failed to produce or destroyed it;

and (4) the opponent, “utterly without explanation,” in fact failed to produce

the disputed evidence when so requested or ordered.115 In so finding, we relied

in part on Justice, then Judge, Stephen Breyer’s notation that “nonproduction

alone ‘is sufficient by itself to support an adverse inference even if no other

evidence for the inference exists[.]’”116



113 Id. at 791 (quoting Mann v. Taser Intern., Inc., 588 F.3d 1291, 1310 (11th

Cir. 2009)).

114 Id. (citing Lawson, The Kentucky Evidence Law Handbook, § 2.65[3] (4th ed.

2003) (An inference based on destruction (or loss) may not be drawn if the destroyer

acted inadvertently (mere negligence) or if there is an adequate explanation for the

destruction (or loss)) and Millenkamp v. Davisco Foods Intern., Inc., 562 F.3d 971 (9th

Cir. 2009) (No missing evidence inference is proper when evidence was destroyed long

before litigation was anticipated)).

115 Id. at 792.

116 Id. at 789 (quoting Nation-Wide Check Corp., Inc. v. Forest Hills Distributors,

Inc., 692 F.2d 214, 217 (1st Cir. 1982)). The Beglin court also quoted Justice Breyer’s

explanation of the rationale behind the missing evidence instruction. Id. (“Judge

Breyer's analysis does not at all suggest the enhanced burden advocated by the

hospital. His reasoning for a lesser standard becomes clearer when the reasons behind

the adverse inference instruction are considered: ‘The adverse inference is based on

two rationales, one evidentiary and one not. The evidentiary rationale is nothing more

than the common sense observation that a party who has notice that a document is

relevant to litigation and who proceeds to destroy the document is more likely to have

been threatened by the document than is a party in the same position who does not

destroy the document. . . . The other rationale for the inference has to do with its

54

The only case in which a Kentucky court has provided an in-depth

discussion of the Beglin standard for a missing-evidence instruction is Mitchell

v. Baptist Healthcare System Inc., an unpublished Court of Appeals decision.117

In Mitchell, the Court of Appeals found that the plaintiff was not entitled to a

missing-evidence instruction based on missing medication and a corresponding

report drafted by a nurse.118 Based on the defense’s witness testimony,

Glimepiride was found on the decedent’s person while he was in the ICU and

was taken to the hospital pharmacy according to protocol.119 The medication’s

discovery by the defense’s witness and destruction by the pharmacy was

documented according to hospital policy.120 The plaintiff in Mitchell argued to

the Court of Appeals that she was entitled to a missing-evidence instruction

based on the defense’s presentation of testimony that suggested that the actual

cause of the plaintiff decedent’s death was ingestion of Glimepiride because the

Glimepiride that the defense witness claimed she found on the decedent could

not be produced as evidence.121 Relying on Beglin and The Kentucky Evidence

Law Handbook, the Court of Appeals stated that it is “well-settled that a

missing evidence instruction should not be utilized in cases where the evidence

was lost as a result of negligence or destroyed in the normal course of business



prophylactic and punitive effects. Allowing the trier of fact to draw the inference

presumably deters parties from destroying relevant evidence before it can be

introduced at trial. The inference also serves as a penalty, placing the risk of an

erroneous judgment on the party that wrongfully created the risk.’” (quoting Nation–

Wide Check Corp., 692 F.2d at 217)).

117 No. 2014–CA–000125-MR, 2015 WL 6082806 (Ky. App. Oct. 16, 2015).

118 Id., at *9.

119 Id.

120 Id.

121 Id., at *8.

55

management.”122 Because the evidence presented at trial showed that the

medication at issue was “destroyed by the pharmacy as part of its regular

course of business . . . , as set forth in written policy[,] . . . . long before there

was any indication that litigation would ensue,” the Court of Appeals found

that the testimony regarding the evidence was properly admitted without

issuing a missing-evidence instruction.123

As explained above, the Court of Appeals in this case found that the trial

court did not abuse its discretion in declining to give a missing-evidence

instruction because there was no proof offered that the requested evidence was

“unaccountably missing” or was lost because of conduct by Norton that went

beyond “mere negligence.” The Court of Appeals relied solely on Beglin124 in

reaching this conclusion. Disselkamp also argues the Court of Appeals’

decision is wrong because it ignores Norton’s ethical duty to preserve evidence

once on notice of potential litigation and because the Court of Appeals

misinterpreted Beglin. Disselkamp asserts that a missing-evidence instruction

was necessary to uphold the integrity of the judicial system because Norton,

being on notice of Disselkamp’s claim as early as her pre-litigation demand

letter, has a duty to preserve all potentially relevant evidence.

Disselkamp also argues that by failing to implement a corporate

“litigation hold” and allowing the requested evidence to be misplaced or

destroyed by normal purging procedures, Norton breached its ethical duty to

preserve the evidence. Disselkamp requests us to clarify a party’s duty to



122 Id.

123 Id., at *9–10.

124 375 S.W.3d 783 (Ky. 2011) as modified on denial of reh'g (Mar. 22, 2012).

56

preserve evidence that could be relevant to potential litigation, specifically

pointing to a federal district court’s decision in Scalera v. Electrograph Systems,

Inc. as the appropriate standard for a party’s duty to preserve such evidence.125

In response, Norton argues that the Court of Appeals did not err by

finding that the trial court did not abuse its discretion in denying Disselkamp’s

request for a missing-evidence instruction. Norton dismisses that Disselkamp’s

argument because a missing-evidence instruction is: (1) must be supported by

trial evidence and Disselkamp’s argument is based mostly on pre-trial

discovery evidence; (2) is only proper when the alleged missing evidence is

material to the issues at trial, and the evidence to which Disselkamp points is

not because “there was no dispute about the information in the missing

documents;” (3) was irrelevant because Disselkamp was allowed to argue fully

her spoliation theory to the jury, even if Disselkamp did not take full advantage

of this.

While we acknowledge that parties in civil litigation must not destroy

evidence the parties know is relevant to potential litigation,

126 we do not agree



125 262 F.R.D. 162, 171, 177 (E.D.N.Y. 2009) (“The Second Circuit has held that

‘[t]he obligation to preserve evidence arises when the party has notice that the

evidence is relevant to litigation or when a party should have known that the evidence

may be relevant to future litigation.’ . . . The court in Zubulake set forth several steps

that counsel should take ‘to ensure compliance with the preservation obligation’: (1)

issue a litigation hold at the outset of litigation or whenever litigation is reasonably

anticipated, (2) clearly communicate the preservation duty to ‘key players,’ and (3)

‘instruct all employees to produce electronic copies of their relevant active files’ and

‘separate relevant backup tapes from others.’”) (internal citations omitted).

126 See, e.g., Beglin, 375 S.W.3d at 788–92 (discussing the remedy available to a

party when an opposing party loses or destroys evidence the opposing party knew was

relevant to potential litigation). Moreover, the Rules of Professional Conduct establish

that lawyers who either destroy or aid another in destroying “a document or other

material having potential evidentiary value[,]” are guilty of an ethical violation.

Kentucky Rules of the Supreme Court (SCR) 3.130(3.4).

57

with the Disselkamp that a party is always entitled to a missing-evidence

instruction, to uphold “judicial integrity,” in all cases where evidence is not

available after the party responsible for the evidence was put on notice of

potential litigation. We also decline Disselkamp’s request to further clarify the

specifics of any ethical duty to preserve evidence in the electronic age because

this case falls clearly within the established principles as articulated in Beglin.

Under the principles articulated and explained in Beglin, the Court of Appeals

was correct, and the trial court in this case did not abuse its discretion in

declining to give Disselkamp a missing-evidence instruction because

Disselkamp failed to explain how the missing categories of evidence were

material to her case, or even if at least one piece of the alleged missing evidence

even existed.

Again, the “four key categories” of missing evidence to which Disselkamp

points are: (1) the emails Norton referenced in its CAR report terminating

Disselkamp; (2) the Ultrasound Observation Report Norton claimed that

Disselkamp falsified as the stated reason for Disselkamp’s termination; (3)

Disselkamp’s QMT binder; and (4) the handwritten piece of paper that Bischoff

allegedly showed to a Norton technologist in the days following Disselkamp’s

termination.

As to the first category of evidence, the emails Norton referenced in its

CAR terminating Disselkamp, we find that this information, even if destroyed

long after the time that Norton was aware of its duty to preserve, fails under

the first element described in Beglin because Disselkamp failed to show that

the emails were material to her case. Disselkamp explains that the CAR stated

that Disselkamp “presented QMT results to manager on 10-21-2012, stating

58

that she had all monthly data via email[,]” and that “only part of the [QMT]

documentation was sent via email.” Disselkamp argues that these emails were

material because the cited references implied that Disselkamp had not sent all

the QMT data to Bischoff. But there seemed to be no dispute between the

parties at trial that Disselkamp did not send all the supporting data to Bischoff

along with her QMT report. Disselkamp’s argument at trial was that she did

not falsify the July data for the patient shielding report but had merely

misplaced the data she used to create the report, and that Bischoff used the

falsification allegation as a pretext to terminate her. This Court fails to see how

the emails stating that Bischoff had received the QMT report but was missing

the July data would have supported Disselkamp’s assertions. While we do not

necessarily agree with the Court of Appeals that Disselkamp was not entitled to

a missing evidence-instruction for the missing emails because she failed to

show that they were destroyed due to anything other than normal purging

procedures,127 we affirm the Court of Appeals insofar as it finds that the trial



127 We are inclined to find that the time delay alone was enough to allow an

adverse inference in favor of Disselkamp given that more than eighteen months

elapsed between the first time Disselkamp formally requested the documents from

Norton, March 4, 2014, and when Norton sent Disselkamp its Supplemental

Response, October 23, 2015, stating that the relevant emails had been “purged.” In

Beglin, we relied on the Ninth Circuit’s decision in Millenkamp v. v. Davisco Food

Intern., Inc., 562 F.3d 971 (9th Cir. 2009), as authority for its proposition that a

missing-evidence instruction is not authorized in cases where evidence was lost “as a

result of fire, weather, natural disaster, other calamities, or destruction in the normal

course of file maintenance, particularly in accordance with industry or regulatory

standards.” Beglin, 375 S.W.3d at 791. But in Millenkamp, the Ninth Circuit found

that a missing-evidence instruction was not warranted where the evidence presented

showed that the alleged missing evidence was destroyed long before the opposing party

was on notice of any potential litigation. We cannot say that Norton purged the

relevant emails long before it was put on notice of the emails’ relevancy to the present

litigation because Norton did not claim that the emails were purged until more than a

year after Disselkamp first formally requested that Norton produce the emails. The

Beglin court also relied on § 2.65[3] of the Kentucky Evidence Law Handbook as

support for this same proposition, which states that “[a]n inference based on

59

court did not abuse its discretion in denying Disselkamp’s request for a

spoliation instruction based on the missing evidence.

As to the second category of evidence, the ultrasound observation report,

which Disselkamp claims that Norton accused Disselkamp of falsifying as the

stated reason for Disselkamp’s termination, we likewise find that this evidence,

even if destroyed long after the time that Norton was aware of its duty to

preserve, fails under the first element described in Beglin because Disselkamp

failed to show that the report was material to her case. Disselkamp argues that

this evidence was material to her case because if she had access to the

document she could have proven that the QMT report was in fact not falsified,

thereby bolstering her claim that Norton used this reason as a pretext to

terminate her employment. But as Norton points out, it was undisputed at trial

that the data contained in the QMT report Disselkamp allegedly falsified did

not change when Norton compiled new data for the patient-shield and

ultrasound reports. We fail to see how access to the actual report submitted by

Disselkamp would have made any difference to her claim that she did not

falsify data. We find that the trial court did not err in declining to grant a

missing-evidence instruction in favor of Disselkamp based on the missing

ultrasound observation report.128



destruction (or loss) may not be drawn if the destroyer acted inadvertently (mere

negligence) or if there is an adequate explanation for the destruction (or loss)[.]”.

Beglin, 375 S.W.3d at 791 (quoting Lawson, The Kentucky Evidence Law Handbook, §

2.65[3] (4th ed. 2003)). Again, while purging emails according to policies of ordinary

business practice is generally considered an “adequate” explanation, Norton’s

explanation strains credulity when considering the time delay between the time

Disselkamp first formally requested the emails and when Norton provided its

explanation for the emails’ unavailability.

128 It seems that the Court of Appeals did not specifically analyze whether the

trial court erred in failing to grant a missing-evidence instruction based solely on the

60

As to the third category of evidence, Disselkamp’s QMT binder, we again

find that this evidence, even if destroyed long after the time that Norton was

aware of its duty to preserve, fails under the first element described in Beglin

because Disselkamp failed to show that the report was material to her case.

Disselkamp claims that this evidence was material because Norton accused

Disselkamp of falsifying QMT data and used the allegation as the reason it

terminated her employment. Disselkamp also relies on testimony presented at

trial that both she and another Norton employee took steps to preserve the

QMT binder even after Bischoff directed that it be destroyed after Disselkamp

was terminated, and that Bischoff placed patient-shielding reports collected by

another Norton employee in Disselkamp’s QMT binder. Disselkamp claims that

the patient-shielding report that Disselkamp was unable to find when Bischoff

requested it could have been among the patient-shielding reports Bischoff

placed in Disselkamp’s binder. Not only is this theory based on nothing more

than speculation, like the analysis of the ultrasound observation report

evidence above, having access to the QMT binder would have done little to help

Disselkamp’s case. Again, Disselkamp’s theory at trial was that Bischoff used

the falsification allegation as a pretext for discrimination and retaliation, and it

was undisputed that the data contained in the QMT report Disselkamp



missing Ultrasound Observation report, but it did find that any error was harmless

because the jury heard evidence that Disselkamp presented accurate data in

compiling the QMT report but could simply not find some of the supporting documents

when requested. So Disselkamp’s theory that Bischoff misrepresented Disselkamp’s

actions to provide pretext for discrimination and retaliation was not prejudiced by

Norton’s failure to produce the requested evidence. Even if we did find that the

missing Ultrasound Report was material to Disselkamp’s case, we agree with the Court

of Appeals that any error in not granting a missing-evidence instruction based on this

evidence would have been harmless for the same reasons.

61

allegedly falsified did not change whenever Norton compiled new data for the

patient shield and ultrasound reports. We agree with the Court of Appeals that

the trial court did not abuse its discretion in declining to give Disselkamp a

missing-evidence instruction.

Finally, as to the fourth category of evidence, the handwritten piece of

paper that Bischoff allegedly showed to a Norton technologist in the days

following Disselkamp’s termination, we conclude that the Court of Appeals did

not err in upholding the trial court’s declining to give a missing-evidence

instruction based on this evidence. Disselkamp’s claim for materiality is based

on speculation and is not supported by any evidence. Disselkamp claims that

Bischoff showed a Norton technologist a handwritten piece of paper a short

time after Disselkamp’s termination, and the technologist identified the piece of

paper as a monthly patient-shielding report. Disselkamp claims that this

evidence was material and should have been produced by Norton because it

could have been the very patient-shielding report that Norton claimed

Disselkamp falsified. We do not find this argument for materiality compelling

because it seems as least equally possible that this was not Disselkamp’s

missing patient-shielding report. Even if we were to find that this evidence is

material, there is absolutely no evidence that this evidence was unavailable due

to anything other than negligence or normal purging procedures. While we do

not mean to suggest that the party requesting a missing-evidence instruction

has a high burden to overcome in showing that an opposing party, who had

exclusive custody and control over the requested evidence, committed some

affirmative act to conceal the evidence, we do find that in this circumstance,

where it is entirely speculative that this lone piece of paper could have been the

62

elusive patient-shielding report Disselkamp herself misplaced, the trial court

did not abuse its discretion in declining to give a missing-evidence instruction

for this evidence.

While the trial court could have granted Disselkamp’s request for a

missing evidence instruction based on one or more categories of missing

evidence outlined above, we cannot find that the trial court abused its

discretion in declining such request. We conclude that the Court of Appeals did

not err when it upheld the trial court’s rulings declining to give the missingevidence, or spoliation, instruction.

For the reasons stated in this opinion, we affirm the opinion of the Court

of Appeals. Because our holding with respect to the challenge to the agediscrimination jury instruction affirms the Court of Appeals’ decision to vacate

the judgment and remand the case to the trial court for further proceedings, we

consider moot Disselkamp’s arguments relating to the propriety of the trial

court’s refusal to allow her to recall McGinnis as a witness to rebut Bischoff’s

testimony and provide additional evidence of discrimination. Consequently, we

do not address this argument further because the trial court may revisit the

issue under different circumstances in the event of a new trial.