After a medical clinic employee reported harassment, she said she didn’t want her alleged harasser “approached about his behavior specifically directed towards [her].” As a result, the lower court determined the employer was excused from failing to address the conduct right away, especially since it did take prompt action once the harassment turned physical. On April 27, 2023, the U.S. Court of Appeals for the 5th Circuit (which covers employers in Louisiana, Mississippi, and Texas) reversed the lower court’s dismissal of the hostile work environment claim, finding a factual dispute over whether the employee had directed the employer to act. The case serves as a reminder that harassment complaints must be addressed seriously and promptly, even if an employee indicates trepidation about their harasser being confronted.
Alleged Harassment Reported Multiple Times
Nena Mauritz worked in the neurology department of a medical clinic since 2010, where she was also treated for her multiple sclerosis (MS). Beginning around 2012 or 2013, a doctor in the neurology department allegedly started calling her “swiss-cheese brain” whenever she made a mistake—in reference to her illness, which causes cognitive issues.
In spring of 2015, the doctor also allegedly told Mauritz she was “prostituting herself out” in front of two pharmaceutical representatives and asked another employee to tell her “f*ck you” next time that employee saw her.
On May 8, 2015, Mauritz met with the clinic administrator to discuss the doctor’s conduct. Later that month, the doctor reportedly remarked that her daughter would “get pregnant when she is 17 or 18 and then [she] would have a baby to love.” According to her, the comment was a reference to her inability to have more biological children.
Following the pregnancy comment, Mauritz met with the clinic’s executive director, to whom she reported the doctor’s alleged comments. She specifically asked to be transferred out of the neurology department and expressed trepidation about her harasser “knowing anything about [her] talking with the administration.”
Mauritz’s alleged harasser was then informed about her plan to transfer. An assistant manager position was created within the neurology department. She was told she would have less contact with her alleged harasser in the new position, although it was still within the doctor’s department.
Mauritz interviewed for other positions within the hospital but either removed herself from consideration or was rejected. She reportedly felt she was being “manipulated” by clinic administrators into accepting the position within the neurology department because there had been “no effort” to assist her in her desired transfer and was instead sent on interviews for jobs for which she wasn’t qualified. As a result, she took the assistant manager position in October 2015.
The next month, her alleged harasser texted Mauritz a picture of her from college, in which her midriff was showing. He also allegedly showed the picture to other employees within the department, “taunted” her with it, and refused to delete it after she asked him to. On other occasions, the doctor would call her out for not wearing heels to work, although he knew she had balance and gait issues related to her MS.
In May 2016, the doctor reportedly touched a button on her shirt and pressed against her breast. He also commented on her “high-cost drugs,” which he asserted were increasing the clinic’s healthcare costs. On another occasion, he allegedly handed her a plastic bag and told her to take a deep breath.
A month after the plastic bag incident, while talking to her alleged harasser, Mauritz got her words mixed up. He then asked, “what’s wrong with you?” Before she could answer he stated, “Never mind, we all know you have something wrong with your brain.”
At this point, Mauritz met with the clinic administrator monthly and brought up her issues with the doctor’s behavior. She asked the administrator not to confront the doctor directly but believed another doctor would speak to her harasser about his behavior, keeping the focus away from her by discussing treatment of a former employee.
Resolution After 4 More Years
The alleged behavior continued for nearly four more years.
Finally, on July 16, 2019, the doctor physically pushed Mauritz. After another employee reported the push, the doctor’s conduct was investigated, and he was suspended, docked pay, and made to undergo counseling and therapy.
After further investigation into the doctor, the clinic imposed additional penalties and required him to pay the costs of the investigation and any monetary settlement that might be paid in the future. Mauritz was placed on administrative leave with pay. She interviewed for and accepted a manager position in another department and suffered no further harassment.
Lower Court Determines Employer Took Prompt Remedial Action
Mauritz sued the clinic, claiming a hostile work environment. The lower court determined she failed to show the clinic hadn’t taken prompt and remedial action, which was fatal to her claim. It court concluded the clinic took prompt, remedial action to prevent the doctor from further harassing her after the pushing incident in July 2019, demonstrated by the investigation and resulting disciplinary action.
Notably, the court decided that because Mauritz had asked the clinic not to confront the doctor about his harassment, she couldn’t argue the clinic failed to take action before the pushing incident.
5th Circuit Decides Employer May Have Failed to Respond
The 5th Circuit disagreed with the lower court and held there was a factual dispute over whether Mauritz directed the clinic administration to act, or if she merely wanted her name to be left out of the conversation when it counseled the doctor.
The appeals court determined the lower court’s conclusions that it was Mauritz’s “uncontroverted testimony that each time she reported [her harasser’s] behavior she asked the clinic not to confront” him was not actually uncontroverted. Instead, it could be concluded that because she feared retaliation, she simply wanted her name left out of the conversation. Accordingly, the 5th Circuit reversed the dismissal of the case. Mauritz v. Lynn and Hattiesburg Clinic, No. 22-60371, (5th Cir., Apr. 23, 2023).
Takeaways
This case serves as a reminder that you must promptly address harassment complaints, even if the employee doesn’t want the harassment addressed or states a complaint is “informal.” You should have other mechanisms for investigating and reporting harassment outside alerting an accused harasser that a specific employee made a report concerning their conduct. At a minimum, the employees should be separated while an investigation is underway. There’s no excuse for ignoring harassment reports—and the 5th Circuit won’t entertain claims that an employee asked the employer not to act.
Samantha Shear is an attorney with Jones Walker LLP in New Orleans. You can reach her at sshear@joneswalker.com.