Patient’s “Turn for the Nurse” Creates Liability for Employer

By Lehr Middlebrooks Vreeland & Thompson, P.C.

February 27, 2019

On February 6, 2019, in the case of Gardner v. CLC of Pascagoula, LLC, the Fifth Circuit Court of Appeals ruled that a nursing assistant could proceed with her Title VII claim based upon the repeated, sexually aggressive behavior toward her by a patient with dementia. The Court stated that

The unique nature of [therapeutic] workplaces is an important consideration. As we and other courts have recognized, that diminished-capacity of patients influences whether the harassment should be perceived as affecting the terms and conditions of employment.

A long-term patient, referred to by his initials J.S., was physically aggressive toward women staff members, including groping and hitting. J.S. had dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s disease. Gardner alleged that she had daily inappropriate contact from J.S., including what she considered sexual assault. Gardner’s supervisor and all the facility’s management were aware of J.S.’s behavior. (J.S. had also once violently assaulted a bedridden roommate in a dispute over the television). In one response to Gardner’s complaint about J.S., Gardner was told to “put [her] big girl panties on and go back to work.” Adding to the dynamic was the fact that J.S. was white and Gardner was black, and according to Gardner, J.S. made racially derogatory comments as well.

One day, Gardner attempted to assist J.S. out of bed to attend a therapy session. He attempted to grope her, and, when she moved, he punched her on the side of the breast. Gardner asked a co-worker to help her, but J.S. punched Gardner a second time and tried to grab the co-worker’s genitals. They hailed a nurse for assistance, placed J.S. in the wheelchair, but he managed to punch Gardner a third time as she turned to make is bed. The co-worker and nurse reported that Gardner swung a fist or raised her hands at J.S., which Gardner denied. Shortly after she returned from medical leave for this attack, she was terminated for insubordination, violating the residents’ rights, and attacking a resident, all related to the event with J.S.

Gardner sued, accusing CLC of, among other things, harassment. CLC defended generally on the grounds that J.S.’s behavior was within the norm for this type of workplace. The District Court granted summary judgment, holding that “it was not clear to the Court that the harassing comments and attempts to grope and hit are beyond what a person in Gardner’s position should expect of patients in a nursing home.”

In reversing the District Court, the Fifth Circuit stated that:

CLC does not dispute that it was aware of J.S.’s treatment of his caregivers, and multiple people testified that they reported his behavior to management. The company had prior notice, not only because of informal complaints but also because of the daily written notes made by the staff. In response to these concerns, CLC failed to even attempt to remedy this situation. [The supervisor] reportedly laughed at Gardner when she complained about J.S.’s behavior, and there is no evidence that the administration took steps to protect its employees. After being punched three times, Gardner asked to be reassigned. The response was ‘no.’

Gardner offered several suggestions to deal with J.S.’s behavior, such as to have multiple caregivers handle him at one time and to medicate him. The Fifth Circuit stated:

Most telling of CLC’s ability to remedy the situation is that it eventually removed J.S. and sent him to an all-male facility it operates. But it chose to do that after J.S. assaulted another patient. No reason is given why that option was not considered when female employees complained of pervasive harassment or in response to the severe assault of an employee.

In addition to this circumstance leading to Title VII liability for harassment, it will also in all likelihood lead to an OSHA citation for an employer’s failure under the General Duty Clause to take appropriate steps to protect employees from injury or harm at the workplace. Even if an employee’s job responsibilities are to deal with individuals who are aggressive or threatening, the training to deal with such individuals does not require ultimately an employee to put up with the behavior to the point of ridicule, threats, or assault. Indeed, many courts have held that employers can be liable for the harassing actions of prison inmates, even though such third-party harassers are arguably even more difficult to control than mere patients.