Employment Law Daily Nurse’s employer, prison where she worked, may be liable for prison employees’ conduct
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Thursday, January 31, 2019

Nurse’s employer, prison where she worked, may be liable for prison employees’ conduct

By Kathleen Kapusta, J.D.

Addressing an unresolved question of Maine law, the court held that MHRA Section 4633 did not bar a nurse’s suit against a non-employer third party for workplace discrimination. Further, her employer had an obligation to try to protect her from the hostile work environment.

Addressing “important issues about employer liability for a hostile work environment created by third parties and about non-employer liability for employment related discrimination” under state law, the First Circuit, reversing in large part the decision of the court below, finding a reasonable jury could conclude that a nurse employed by Correct Care Solutions (CCS) at a Maine Department of Corrections (MDOC) prison endured a hostile work environment created by MDOC employees. Finding further that Maine Human Rights Act Section 4633 allows suits against non-employer third parties for discrimination that occurs in a workplace, the court held she could proceed to trial on her Section 4633 interference and retaliation claims against MDOC. As to her Title VII and state law sexual harassment and retaliation claims against CCS, the court found CCS plainly knew of the harassment and the reasonableness of its response is an issue for the jury. Finally, said the court, qualified immunity protected the prison warden and deputy warden from suit (Roy v. Correct Care Solutions, LLC, January 28, 2019, Lynch, S.).

CCS, which operates and staffs the prison’s medical facility pursuant to a contract with MDOC, hired the employee to work in the clinic. Not long thereafter, she complained to her CCS supervisors and MDOC that a corrections officer (CO) assigned to the clinic made constant sexual jokes and degrading comments about women and once spanked her. Although he was reassigned, the employee complained about other COs, including about their derogatory jokes and comments, and that they often left her alone with inmates.

Multiple complaints. On one occasion, she complained that a CO called her a “bitch” on two occasions and sent explicit text messages to her. She also complained that COs would ask for inmate confidential medical information and called her names and threatened her when she refused to share it. Ultimately, she claimed, the COs, motivated by hostility toward her, began filing complaints against her. Although the employee requested a transfer, no action was taken. Not long thereafter, a CO messaged her on Facebook, telling her she was lucky another officer was on leave because he was trying to get her fired and that he was telling everyone “you have f****d everyone in the prison.” The employee again complained but MDOC did not respond because “The Facebook stuff, that’s off-duty stuff.”

Fired. Approximately two weeks later, the employee and another nurse claimed they were left in the clinic alone with prisoners for 15 minutes. Because she had been warned about the number of complaints she’d made, the employee did not file an incident report. The other nurse, however, did. When surveillance footage revealed that they had not been left alone for very long, MDOC revoked her security clearance and CCS fired her. MDOC did not revoke the security clearance of the other nurse.

Lower court proceedings. The employee then sued CCS, MDOC, and the prison warden and deputy warden, alleging discrimination and sexual harassment by the COs created a hostile work environment and that she was retaliated against for complaining about the HWE and for other whistleblowing. The district court granted summary judgment to all defendants on all claims.

Hostile work environment. Turning first to the employee’s HWE claim under Title VII and the MHRA, the appeals court found, in contrast with the court below, that much of the abuse she experienced was “undoubtedly based on her sex.” One CO made constant derogatory comments about women, another pestered her for her phone number in Facebook messages and conveyed that a third was spreading rumors that she had “f****d” everyone in the prison, and yet another sent her graphically sexual text messages. Nor was there any doubt that calling her a “bitch” was connected to her sex.

In addition, a jury could find that the COs put her at risk, treated her rudely, ignored her, demeaned her, and filed reports complaining about her not only because of her whistleblowing but also because of her sex, said the court, noting that “Responding disrespectfully or dismissively to women’s requests, complaining about women’s performance, and ignoring or ostracizing women are paradigmatic ways to communicate to women that they are less worthy than or less welcome than men in a workplace.”

Severe and pervasive. Further, not only could a jury find the practice by one CO of leaving the employee alone with inmates severe enough, on its own, to alter the terms and conditions of her employment, there was also evidence she was subjected to persistent derision and daily retaliatory treatment, which a jury could view as a pattern of hostility.

MDOC’s liability under state law. Because a jury could find the employee endured a HWE, the court turned to the liability of each defendant, starting with the employee’s claim MDOC interfered with her MHRA-protected right to work free from sex discrimination in violation of MHRA Section 4633(2). While the district court found that Section 4633 allows employment discrimination actions against employers only, the appeals court disagreed, noting that it prohibits any “person” from hindering by interference, coercion, or intimidation, or by retaliation, the exercise of any rights granted or protected by the MHRA, a conclusion, said the court, that was supported by legislative history and Maine’s Human Rights Commission.

Nor did Fuhrmann v Staples the Office Superstore East, Inc,which the district court relied on, bar the employee’s claim as it never mentioned Section 4633 and assessed only whether the legislature intended to allow suits against individual supervisors, not what it intended about suits against non-employer third parties.

Also rejected as “plainly wrong” was MDOC’s alternative argument that the employee failed to offer sufficient evidence to support her Section 4633 interference and retaliation claims. A jury could find that MDOC’s stated reason for revoking the security clearance—the employee’s statement about being left alone for 15 minutes and her failure to file a report on the incident—was pretext for retaliation said the court, noting among other things, the glaringly differential treatment of the employee and the other nurse whose security clearance was not revoked. Accordingly, the court found those claims could proceed to trial.

HWE claim against CCS under Title VII and state law. Although the district court never discussed whether there was a basis for CCS’s liability under Title VII and the MHRA, the appeals court, citing the unique nature of the employee’s workplace—where workers employed by multiple entities shared a worksite that did not belong to the employee’s employer and where the organizational relationships afforded non-employers influence over employment conditions and decisions—considered the issue. While many third-party harassment cases involve less complex arrangements such as retail customers who harass employees at a store, in the court’s view, “the duty to try to protect employees from sexual harassment exists in other environments, even in environments that are, like MDOC’s prison, ‘inherently dangerous’ and difficult to control.”

CCS, said the court, had an obligation to try to protect the employee from a HWE. It plainly knew of the harassment and the reasonableness of its response would be for the jury to decide. Although it did not employ the COs or manage the prison, it was not helpless to influence the officers, their supervisors, or the operation of the prison’s medical facility as it had formal and informal mechanisms for raising the employee’s complaints and pressing for remedies. It did not, however, always use these mechanisms and when MDOC’s responses were dismissive or inadequate, it often did nothing.

Further, apart from what CCS did or could have done to influence MDOC was the issue of what it could have done on its own, the court observed, noting that a jury could see as unreasonable CCS’s changing story about and seeming failure to consider an obvious mitigating measure, and one requested by the employee—a transfer. Thus, said the court, this claim should also go to a jury.

Retaliation claim against CCS. As to the employee’s Title VII and state-law retaliation claims against CCS, a jury could find her complaints protected because they reported activity she reasonably and in good faith believed violated those statutes. While CCS argued that the revocation of her security clearance was the sole but for cause of her termination, the court found a dispute as to whether the revocation of the security clearance meant that CCS could no longer employ her as there was no evidence a transfer was impossible. Alternatively, a jury could find MDOC’s retaliatory animus caused the revocation of the security clearance and, in turn, caused the employee’s termination. Further, a jury could find that CCS’s stated reason was pretext for a retaliatory motive, said the court, noting among other things that a jury could infer from CCS’s failure to discipline the other nurse that it did not find discipline-worthy the conduct that MDOC says led to the revocation of the employee’s security clearance.

A jury should also decide the employee’s whistleblower claims, said the court, noting that if it sees a need to, it “can tease apart the effects of the two sets of complaints—those about sexual harassment and those about officers leaving [the employee] alone with inmates, asking for confidential inmate medical information, and refusing to bring inmates to the clinic.”

Claims against individual defendants. Finally, the court turned to the employee’s claim that the warden and deputy warden failed to stop prison staff from sexually harassing her in violation of the Equal Protection Clause and that they revoked her security clearance because of her complaints in violation of the First Amendment. Noting that supervisors are liable under the Equal Protection Clause for a HWE created by their subordinates in state government only if their “link” to the unlawful harassment was one of “‘supervisory encouragement, condonation, or acquiescence,’ or ‘gross negligence amounting to deliberate indifference,’” the court observed that complaints against two officers were investigated and addressed while complaints about three officers’ retaliatory behavior were not. “[A]s is common where there is a lack of precedent, this is not a case in which a reasonable officer must have known that he was acting unconstitutionally,” said the court, finding they were protected by qualified immunity.

Likewise, they were entitled to qualified immunity from the First Amendment retaliation claim because reasonable officials could have believed that revoking the employee’s security clearance would not violate the Constitution. Noting that she only complained internally, the court explained that the Supreme Court has sometimes seen a plaintiff’s failure to “inform the public” about her concerns as cutting against First Amendment protection.

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