Labor & Employment Law Daily Jury award to CNA harassed by mentally impaired patient upheld in large part
Tuesday, July 30, 2019

Jury award to CNA harassed by mentally impaired patient upheld in large part

By Kathleen Kapusta, J.D.

The jury’s $60,000 award for past and future emotional damages was reduced from $60,000 to $50,000, the statutory cap, but the court refused to reduce the award further, finding it was not excessive.

Denying for the most part an employer’s post-trial motions after a jury awarded $70,000 to a certified nurse assistant who was subjected to a mentally impaired patient’s repeated harassment, and fired her after she purportedly swung at him and then refused to treat him following a physical altercation, a federal district court in Mississippi found the evidence supported her hostile work environment claim. And while the court found the jury’s award for past and future emotional damages was subject to the $50,000 statutory cap and accordingly reduced the nonpecuniary damages award from $60,000 to $50,000, it refused to reduce her emotional damages award any further (Gardner v. CLC of Pascagoula, LLC, July 25, 2019, Guirola, L., Jr.).

Sexually aggressive patient. Although the CNA was trained to deal with physically combative and sexually aggressive patients, one patient at the nursing home had a long history of violent and sexual behavior toward both patients and staff that included grabbing female caregivers’ breasts, butts, and thighs, asking staff to perform explicit sexual acts, and making lewd sexual comments. When the CNA complained about the patient—who suffered from dementia, traumatic brain injury, and Parkinson’s disease—her supervisor allegedly laughed and an administrator said she needed to put “big girl panties on and go back to work.”

Termination. While she was assisting him one morning, the patient tried to grope her several times and punched her three times. The African-American CNA then purportedly attempted to swing at him and commented “I am not doing shit else for [him] at all” and “I guess I’m not the right color.” That evening, she went to the emergency room and was off work for three months on workers’ compensation. When she returned, she was fired, purportedly for engaging in insubordination by refusing to care for the patient, violating his resident rights by swearing and making a “racist” statement, and attacking him by swinging over his head. After a separate altercation later that same day with another resident, the patient was sent for a psychiatric evaluation and moved to an all-male “lockdown” unit.

Prior proceedings. Although she sued the nursing home, the court had granted summary judgment against her Title VII hostile work environment and discrimination claims, finding the unique circumstances of working in a nursing home was a vital consideration and she was trained and hired to take care of that kind of patient. On appeal, the Fifth Circuit, also stressing that the “unique nature of that workplace is an important consideration,” held that a reasonable jury could find that years of pervasive sexual comments, grabbing, and assault created a hostile work environment for the CNA.

Jury award. The case was remanded and after a three-day trial, the jury determined that the CNA had been subjected to a hostile work environment and retaliation. It awarded her $10,000 in back wages, $30,000 for past pain and suffering, and $30,000 for future pain and suffering. The employer then renewed its motion for judgement as a matter of law or alternatively for a new trial and for application of the damages cap and remittitur.

Severe/pervasive conduct. The employer first argued that the CNA failed to show the harassment affected a term, condition, or privilege of her employment. It claimed her testimony limited the scope of her hostile work environment to the events of her last day but the court disagreed, finding the entirety of her testimony and that of the other witnesses did not support that conclusion and thus the jury was instructed to consider all of the circumstances, including the frequency of the conduct, its severity, and whether it was physically threatening or humiliating.

The jury considered testimony that the employee was directly responsible for the patient’s care two days out of the week for a period of less than six months; she experienced sexually graphic comments and grabbing and groping from him every day she cared for him; she was unable to attend work after her last encounter with him and is now afraid when she cares for male patients. This was evidence, said the court, from which a reasonable jury could have concluded that the CNA was subjected to conduct that was severe and/or pervasive.

Remedial action. The employer also argued that the evidence did not support the conclusion it failed to take prompt remedial action. To the contrary, it argued, all the witnesses testified regarding the measures it employed to handle the patient, including redirection, requesting assistance of another CNA or nurse, medical testing for infection, dispensing medication, special monitoring, and arranging a psychiatric exam.

Despite this evidence, however, the jury decided that the employer failed to take adequate measures to stop or remedy the harassment, presumably, said the court, because the measures did not actually stop his conduct. This was a factual determination for the jury, which was told that it could consider the effectiveness of the remedial measures, and thus the evidence was sufficient to allow the jury to find the employer knew or should have known of the hostile work environment but failed to take reasonable measures to try and stop it.

Retaliation. As for the CNA’s retaliation claim, the court found that even though there was evidence of other reasons for her termination, a reasonable jury could have concluded that she would not have been terminated if she had been willing to continue to work with the patient and thus the employer was not entitled to JMOL or a new trial on the retaliation claim either.

Statutory damages cap. Noting that 42 U.S.C. § 1981a limits the amount of certain compensatory damages that may be awarded to an employment discrimination plaintiff depending on the size of the employer, and that here the evidence indicated the employer had around 82 staff members during the time in question, the court found that the applicable statutory cap was $50,000 for nonpecuniary damages. Rejecting the CNA’s assertion that the statute applies only to an award for future pain and suffering, and thus the jury’s $30,000 award for this was below the cap, the court found a plain reading of the statute establishes that the cap applies to an award of future pecuniary losses, all nonpecuniary losses, and punitive damages. Accordingly, the jury’s $60,000 award for past and future emotional damages was subject to the cap and had to be reduced to $50,000.

Emotional and mental injury. Finally, the employer argued that there was insufficient evidence to support the past and future emotional damage awards of $30,000 each. Here, the only emotional damage evidence was the CNA’s testimony that while she was fine physically, “I’m afraid. I’m afraid to even have a male patient now. I’m afraid And it bothers me. I have anxiety. I get nervous. It affected me. It affected me in a lot of ways, in a lot of ways, and I’m truly embarrassed to sit here in front of people and tell because it is embarrassing.”

Although her testimony presented “a very close question of sufficiency,” as her statements about her work being hard, having anxiety, being bothered, and getting nervous were vague and conclusory, her “testimony about being afraid to have a male patient pulls her testimony into the realm of sufficiency” under Fifth Circuit precedent, said the court, finding this was a concrete manifestation of emotional injury that could be expected to continue into the future. Therefore, the court did not further reduce the emotional damages award, which was capped at $50,000.

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