Norton Healthcare, Inc. v. Lual A. Deng (formerly Jacob L. Aker) (Kentucky 2016)

Summary

The Kentucky Supreme Court reversed the Court of Appeals and reinstated summary judgment for Norton on Aker's post-termination retaliation claim. The court held that the appellate court improperly invoked the futile-gesture doctrine sua sponte, although the relevant attorney conversation was admissible under KRE 408. Aker nevertheless failed to establish an adverse employment action because he neither applied for nor identified a particular position he sought after filing his lawsuit.

Holding

Sua sponte invocation of the futile-gesture doctrine. The Court of Appeals erred by invoking the futile-gesture doctrine on its own initiative because Aker did not raise the theory before the trial court or in his appellate briefing, and the issue was therefore not preserved for appellate review.

Admissibility of the attorney conversation under KRE 408. KRE 408 did not exclude the conversation because the attorney was communicating Aker’s demands rather than engaging in negotiations intended to settle the dispute.

Prima facie post-termination retaliation claim. Aker failed to establish a prima facie retaliation claim because he did not prove an adverse employment action: he did not apply for any position after the alleged retaliatory statement, Norton was not obligated to rehire him, and he did not identify a particular position he would have sought.

Summary

Holding

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