A lab technician processes blood test samples in a laboratory.
FRANKFORT, Ky. - A blood-draw technician who suffered sexual harassment by a patient lost her appeal over whether “bare bones” jury instructions doomed her $25 million claim.
Jessica VandeRyt sued Norton Healthcare after she resigned from the hospital, claiming she suffered retaliation after demanding more protection against patient harassment. In 2020, a man dropped his trousers and began masturbating while she was alone in the blood-draw room with him.
Hospital authorities immediately reported the incident to police, installed a panic button in the room, ended a closed-door policy that had been intended to protect patient privacy and excused VandeRyt from outpatient duties for several months. While other workers complained to Norton management about covering for VandeRyt, there was no evidence they harassed her directly.
VandeRyt was placed on paid leave after accumulating 10 unexcused absences, but Norton declined to fire her after discovering discrepancies in employee time records. In October 2021 she quit, stating in a text to her supervisor that she needed “to resign immediately due to family and personal reasons,” without mentioning sexual harassment or retaliation.
A year later, she sued Norton, seeking $25 million in damages for humiliation, embarrassment, mental anguish and emotional distress. Jefferson County Judge Joseph Haner refused to dismiss the case, ruling a jury might decide Norton had failed to adopt policies to protect VendeRyt from sexual harassment. After a six-day trial, the nine-member jury ruled for Norton, however.
VandeRyt appealed, arguing the jury instructions failed to track federal employment law and misled the jury into thinking she didn’t present enough evidence of retaliation. The Kentucky Court of Appeals disagreed in a Sept. 18 decision affirming the defense verdict.
The appeals court opened by criticizing the work of VanderRyt’s attorney, who cited entire minutes of videotape from the trial instead of specific portions of the record.
“Much more troubling is the fact that some of VandeRyt’s citations are to evidence that counters her assertions,” wrote Judge Kelly Mark Easton, such as fact claims that were contradicted by the testimony she cited.
In another part of her brief, VandeRyt’s lawyer wrote: “After successfully overturning her termination, Vanderyt continued to work, but she still struggled with the lack of safety precautions.” Nothing in the 15 minutes of tape she cited supports her claim she was terminated or made specific requests to improve safety other than complaining when a COVID-19 check-in table was removed from outside the blood draw room.
“We caution counsel in the future to properly cite specific locations in the record and to clearly distinguish the actual evidence adduced at trial from unsupported arguments in briefs on appeal,” the court said.
Unlike some other states, Kentucky adheres to the “bare bones” approach to jury instructions to not explain evidentiary matters or “unnecessary detail.” Kentucky law defines “adverse employment action” as changing a worker’s wages, title, responsibilities “or taking other actions that materially and adversely affect” the job. VandeRyt argued the federal Title VII employment law and the U.S. Supreme Court’s 2006 decision in Burlington-Northern v. White “changed the law,” allowing a claim Norton dissuaded her from reporting a hostile work environment.
That language would go too far under Kentucky’s “bare bones” jury instruction rule, the appeals court said, because it simply adds detail to the given phrase “adversely affected the terms and conditions” of her employment. It was up to VandeRyt’s lawyer to convince the jury her retaliation claims were supported by the evidence, the court said.
“Nothing would have prevented VandeRyt’s attorney from fleshing out the jury instructions here by quoting from Burlington-Northern,” the appeals court said.
Attorney Robyn Smith represented VandeRyt, while Jeremy Rogers represented Norton.
