Employment Law Daily 5th Circuit amends opinion reviving nurse assistant’s Title VII claim of patient harassment
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Tuesday, February 12, 2019

5th Circuit amends opinion reviving nurse assistant’s Title VII claim of patient harassment

By Lorene D. Park, J.D.

In a CNA’s suit over harassment by a mentally impaired patient, the court replaced a prior opinion, removing portions of its analysis but still stressing that the “unique nature of that workplace is an important consideration” regarding employer liability.

Though the specific environment in this Title VII sexual harassment case had to be taken into account, including that the alleged harasser was an assisted living facility patient with dementia, the Fifth Circuit held that a reasonable jury could find that years of pervasive sexual comments, grabbing, and assault created a hostile work environment for a certified nurse assistant (CNA), whose injuries at one point precluded her from working for three months. In issuing this amended opinion, the appeals court still reversed summary judgment but, in discussing that the nursing home’s liability also required evidence that it knew of the harassment and failed to take remedial action, the court removed its discussion concerning mockery faced by the employee when she complained about the harassment, instead leaving those facts to be considered in the court below. The employee’s retaliation claim also was remanded for the lower court to consider, in the first instance, her argument that she had direct evidence of retaliation (Gardner v. CLC of Pascagoula, February 6, 2019, Costa, G., amended).

Sexually aggressive patient. The CNA, who was trained to deal with “physically combative and sexually aggressive patients” at the nursing home, filed suit over harassment by a patient who suffered from dementia, traumatic brain injury, and Parkinson’s disease. He had a long history of violent and sexual behavior. He also would grab female caregivers’ “breast[s], butts, thighs,” and try to “grab [their] private areas.” When the CNA complained, her supervisor allegedly laughed, and an administrator told her to put “big girl panties on and go back to work.”

The CNA cared for the patient until one day when he tried to grope her breast and made sexual comments, and then punched her repeatedly while others tried to assist her. A white nurse had more success in calming him. According to the employer, the CNA, who is black, took a swing at the patient, saying “I am not doing shit else for [patient] at all” and that “I guess I’m not the right color.” She refused to work with him and asked to be reassigned.

After being out on workers’ comp for three months, the employee was fired for insubordination in refusing to care for the patient, making a “racist” statement, and attacking him by swinging over his head. Meanwhile, after a separate altercation with another resident, the patient was sent for a psychiatric evaluation and moved to an all-male “lockdown” unit.

Lower court proceedings. The district court granted summary judgment against the employee’s hostile work environment claim based on its conclusion that it was “not clear” that the patient’s harassing comments and attempts to grope and hit her were beyond what a person in her position should expect of patients in a nursing home. It also tossed her retaliation claim.

Sexual harassment claim. On appeal, the Fifth Circuit noted in a revised opinion that it was undisputed the employee was subjected to harassment based on sex. The employer defended the grant of summary judgment on the ground addressed by the lower court and on one the court did not reach: whether the company knew about the harassment and failed to take remedial action. Reviewing the sexual harassment claim de novo, the appeals court reversed.

Unique work environment. While the years of sexual grabbing and comments would “certainly be deemed severe and pervasive” if the harasser had no mental impairments, the harasser here was a patient who had dementia, and specific circumstances had to be considered in deciding if a reasonable person would find the work environment hostile or abusive.

Comparing this case to others involving harassment by patients, the appeals court found that the conduct here was more severe than Fifth Circuit cases involving nonphysical harassment (which did not rise to the level of actionable conduct). However, it was not as severe as cases from other circuits, in which potentially life-threatening sexual assaults were severe enough to raise triable issues. Thus, said the Fifth Circuit, “the question remains whether the conduct here, which falls in the middle of this continuum, is enough. And that, as we have said, involves the difficult line-drawing problem of what separates legally actionable harassment from conduct that one should reasonably expect when assisting people suffering from dementia.”

Jury could find it severe or pervasive enough. In the appellate court’s view, the evidence of persistent and often physical harassment by the patient was enough to allow a jury to decide whether a reasonable caregiver on the receiving end would find the harassment sufficiently severe or pervasive, even considering the medical condition of the harasser. The court noted that the conduct was “far more severe than other residents’ and consisted of physical sexual assault and violent outbursts,” and that it injured her so badly that she could not work for three months.

Change in amended opinion. In withdrawing its June 2018 opinion and issuing the new one, the appeals court left most of the analysis intact, but did make some changes. On the harassment claim, the court in both opinions explained that finding harassment severe or pervasive isn’t enough to hold the nursing home liable and, since the harasser was not a supervisor, liability required showing “the employer knew or should have known of the hostile work environment but failed to take reasonable measures to try and stop it.” In the prior opinion, the court described the mockery faced by the employee when she complained to her supervisor and an administrator, finding it clear the administration knew of the harassment and “failed to even attempt to remedy the situation.” In the amended opinion, though, the appeals court simply stated that the employer “did not argue in its summary judgment motion that it was entitled to judgment as a matter of law on this element” so the appeals court had no occasion to consider it.

Retaliation claim remanded on direct evidence argument. The Fifth Circuit affirmed as to the lower court’s unchallenged decision that the retaliation claim failed under the McDonnell-Douglas burden shifting framework relying on circumstantial evidence. The appeals court noted, however, that the employee all along had asserted that she could prove retaliation based on direct evidence, and the lower court did not consider that argument. Thus, the district court would be allowed to consider that argument in the first instance on remand.

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