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Nursing home CNA’s hostile work environment claims revived based on patient harassment

By Marjorie Johnson, J.D.

Addressing the “unique” circumstances faced by nursing home employees who assist mentally impaired residents, the Fifth Circuit revived the hostile work environment and retaliation claims of a certified nurse assistant (CNA) who was subjected to a patient’s repeated harassment and fired after she purportedly swung at him and then refused to treat him following a physical altercation. Dismissal of her Title VII claims on summary judgment was reversed since a jury could conclude that an “objectively reasonable caregiver would not expect a patient to grope her daily, injure her so badly she could not work for three months, and have her complaints met with laughter and dismissal” by her employer (Gardner v. CLC of Pascagoula, LLC, June 29, 2018, Costa, G.).

Sexually aggressive patient. The CNA was trained to deal with “physically combative and sexually aggressive patients,” which was not unusual to have at a nursing home. At issue here were her interactions with one such patient, who had a long history of violent and sexual behavior toward both patients and staff. The patient would grab female caregivers’ “breast[s], butts, thighs,” and try to “grab [their] private areas.” He also regularly asked the staff to perform explicit sexual acts and made lewd sexual comments. When she 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.”

Altercation leads to firing. The CNA continued to care for the patient until one morning when he tried to grope her breast and made sexual comments, and then punched her on her side when she moved. Another CNA attempted to assist, but he struck her again, causing her to seek help from a white nurse, who had more success in calming him. Though they were able to get him into his wheelchair, he punched her a third time when she tried to make the bed. The employee, who is black, then purportedly attempted to swing at him and commented that “I am not doing shit else for [patient] at all” and that “I guess I’m not the right color.” She also refused to work with him and asked to be reassigned, but her request was denied.

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. Meanwhile, after a separate altercation later that same day with another resident, the patient had been sent for a psychiatric evaluation and moved to an all-male “lockdown” unit.

Wrong summary judgment standard. The district court erroneously tossed 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. On summary judgment, she only needed to show that a jury could reach that conclusion based on its view of the evidence, and the Fifth Circuit found that she met that burden.

“Unique” circumstances. The multiple years of unwanted sexual grabbing and explicit comments could “certainly” be deemed sufficiently severe or pervasive if the harasser had no mental impairments. However, the case was more complicated because the source of the harassment was the resident of an assisted living facility who suffered from dementia. Therefore, at issue was whether a reasonable person would find the work environment hostile or abusive considering the “unique circumstances involved in caring for mentally diseased elderly patients.”

Level of harm. Examining similar cases involving mentally impaired patients, the Fifth Circuit noted that certain verbal harassment had been deemed insufficient to create a hostile work environment, while triable claims existed when patients engaged in potentially life-threatening sexual assaults. Thus, it appeared that inappropriate comments and incidental contact were “sufficiently common behaviors among patients with reduced cognitive ability that it is not objectively reasonable for a caregiver to expect they will never happen.” However, the facility must take steps to try to protect an employee once there is physical contact “that progresses from occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm.”

Question for jury. Finding that the patient’s conduct fell in the “middle of this continuum,” the Fifth Circuit held that the frequency and nature of the patient’s conduct, along with its effect on the CNA’s employment, could allow a jury to conclude that a reasonable caregiver would view the harassment as sufficiently severe or pervasive even considering his medical condition. His inappropriate conduct occurred daily, was far more severe than behavior by other residents, consisted of physical sexual assault and violent outbursts, and culminated in an incident that left her unable to work for three months.

Liability. The employer did not convince the appeals court that it was impossible to control the patient’s actions due to his various illnesses. Rather, the court found the employer failed to take reasonable measures to try to remedy the harassment, and supervisors even mocked the employee when she complained. It was not “helpless” in trying to mitigate the patient’s behavior, as other nursing homes have avoided liability by assigning a security escort, reassigning the victimized employee, and offering to remove the patient from the facility. The employer also demonstrated its ability to remedy the situation by eventually sending the patient away to an all-male facility, but only after he assaulted another patient.

Retaliation. The district court also erred in analyzing the employee’s retaliation claim under the McDonnell-Douglas framework. Rather, triable issues existed as to whether she presented direct evidence that her refusal to provide care for the harassing patient was the “but for” cause of her termination. The Fifth Circuit declined to address whether she had engaged in protective activity, however, since the issue had not been addressed by the lower court.