Background
Jessica VandeRyt, a Norton Healthcare phlebotomist, reported that an adult male patient exposed himself and masturbated during a blood-draw appointment. Norton contacted security and police, let VandeRyt leave work with pay, temporarily excused her from outpatient-room duties, changed its closed-door policy, installed a panic button, arranged security training, and barred the patient from returning. VandeRyt later resumed outpatient duties after requesting a shift change.
VandeRyt claimed that coworkers subsequently ostracized her and objected to covering her outpatient duties. After an attendance review initially placed her at the termination threshold, Norton found tracking errors, reduced her points, and returned her to work with full pay and benefits. She later resigned for stated family and personal reasons and sued Norton for hostile work environment, retaliation, and constructive discharge under the Kentucky Civil Rights Act. A jury found for Norton on every claim. VandeRyt appealed only the retaliation verdict, challenging the instructions concerning adverse employment action and protected activity.
The Court’s Holding
The Kentucky Court of Appeals affirmed. It held that the trial court correctly gave a “bare bones” instruction permitting the jury to find an adverse employment action if Norton terminated VandeRyt, materially and adversely changed her compensation, title, benefits, or responsibilities, or otherwise materially and adversely affected the terms and conditions of her employment. Although the U.S. Supreme Court’s Burlington Northern decision may have broadened the evidence capable of establishing material adversity under federal law, it did not require Kentucky courts to place its “dissuade a reasonable worker” formulation in jury instructions. Counsel remained free to explain that standard during closing argument, as VandeRyt’s counsel did.
The court also rejected VandeRyt’s argument that the instructions improperly excluded her complaints about alleged coworker retaliation from the definition of protected activity. The record contained no evidence from which a reasonable jury could find that she separately opposed coworker retaliation in a significant way or that Norton knew her coworkers were retaliating against her. The court added that even if the requested Burlington Northern language should have been included, any error was harmless because the evidence would not sustain her retaliation claim or show that she was constructively discharged.
Key Takeaways
- Kentucky’s “bare bones” approach requires jury instructions to state the essential elements of a claim without detailing every evidentiary formulation drawn from precedent.
- Burlington Northern may broaden the conduct that can constitute materially adverse action, but the Court of Appeals held that its “dissuade a reasonable worker” language need not appear verbatim in a Kentucky retaliation instruction.
- A retaliation theory based on complaints about subsequent coworker conduct requires evidence that the employee opposed that conduct as retaliation and that the employer knew about it.
Why It Matters
The opinion distinguishes the legal elements that must appear in a Kentucky jury instruction from the evidence and arguments that may establish those elements. Employment litigators may use federal retaliation precedent to explain why particular conduct was materially adverse, but trial courts need not incorporate those fact-specific formulations into written instructions.
The decision also underscores the importance of a developed evidentiary record connecting alleged coworker hostility, the employee’s complaints, the employer’s knowledge, and the challenged employment action. General dissatisfaction or unreported coworker conduct will not by itself support a retaliation instruction or verdict.