Employment Law Daily Dealing with patients who say offensive things was part of aide’s job, not Title VII claim
Friday, March 30, 2018

Dealing with patients who say offensive things was part of aide’s job, not Title VII claim

By Lorene D. Park, J.D.

Granting summary judgment against a hostile work environment claim by an African-American security therapy aide who alleged that a patient repeatedly made racially derogatory comments and once tried to attack her, a federal district court in Illinois explained that she was trained how to deal with and restrain the mentally ill residents as a regular part of her duties. Because of that context, the offensive comments and behavior were not sufficiently severe or pervasive to alter the conditions of employment and support a Title VII claim (Westbrook v. Illinois Department of Human Services, March 26, 2018, Kendall, V.).

Worked with the mentally ill. Since 2001, the employee had worked as a security therapy aide for the Illinois Department of Human services’ (IDHS) forensic treatment programs. The programs house individuals who have been committed by a criminal court after being found not guilty by reason of insanity. Her job duties included documenting inappropriate behavior by residents, de-escalating inappropriate behavior, and preventing residents from harming themselves or others. She received training on how to deal with disruptive residents, restrain combative residents, and defend herself against resident attacks. She testified that she knew when she took the job that she was dealing with mentally ill people. During her nearly 10 years there, she observed patients assault others on a regular basis, and she regularly worked with patients who said hurtful or offensive things to staff members.

Alleged racial harassment. In June 2012, a new resident was admitted after being found not guilty by reason of insanity for the first-degree murder of her 4-year-old daughter. According to the employee, between April and October 2014, this resident continuously called her racially derogatory names—for example, “black bitch,” “ni**er” and “black cow”—and, on May 3, tried to physically attack her. The employee did not write many of the instances of the racially offensive conduct in the resident’s progress notes, which included only three such references to racist comments. During the five-month period when the employee claimed she worked in a hostile work environment, she took two months of FMLA leave.

Meanwhile, the resident routinely wrote letters to hospital staff asking to be transferred off the unit because she did not trust the treatment team, and she believed the team was causing the staff to write negative things in her chart. She also filed 13 complaints with the Office of Inspector General (OIG) accusing staff of abuse and neglect, naming the employee in three of these.

Employee seeks transfer. In 2014, the employee repeatedly asked to transfer to a different unit. She claimed that in most instances, the nursing supervisor didn’t respond, including when she complained of a racially hostile environment, saying “I can’t take this anymore.” In September 2014, the supervisor responded that the “resident would be getting what she wanted if we move you.” The employee also asked the assistant director of nursing for a transfer, leaving more than one voice mail, but she never received a response.

Employer reduces interactions. On the other hand, the IDHS denied ever receiving a complaint from the employee regarding the resident’s racist behavior; she never filed a complaint with the Bureau of Civil Affairs or a grievance with the union. That said, IDHS enacted some changes to reduce the employee’s interactions with the abusive resident. In June 2014, a program director ordered that the employee would no longer accompany the resident during phone calls because the resident frequently became explosive when the employee confronted her about inappropriate phone use. And after one of the resident’s OIG complaints, IDHS transferred the employee from the female side of the unit to the male side, though there was still some interaction between the two.

Emotional distress. According to the employee, she began experiencing severe emotional distress due to the hostile environment and needed psychiatric treatment. She eventually bid for a new position based union seniority rules and was awarded the first position she sought. She started her new job on a different unit in February 2015.

Not severe and pervasive enough given the context. Addressing the employer’s motion for summary judgment against the employee’s hostile work environment claim, the court noted that she described six specific instances of being called racist names. These included several uses of the n-word, which is recognized in the Seventh Circuit as having a “highly disturbing impact” given American history. On the other hand, this behavior is the kind of resident conduct that the employee was hired and trained to handle. Indeed, she was hired to work with patients so mentally ill that they could not understand criminal proceedings against them. To cope with this, the employee received months of training on dealing with daily patient altercations, outbursts, and potential assaults.

Given this context—six comments spread over two years and made by a criminally insane patient who aggressively reacted to her treatment team by filing multiple OIG complaints and who was hospitalized after killing her own child—this was exactly the kind of patient with whom the employee was trained to deal, and no reasonable factfinder could conclude the resident’s behavior was so severe or pervasive as to alter the conditions of the employee’s work environment.

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