The U.S. 5th Circuit Court of Appeals (whose rulings apply to Louisiana employers) recently provided some guidance on whether an employer has a duty to protect employees from sexual harassment by its customers. In this case, the employer was a nursing care facility, and the “customer” was a mentally impaired patient with whom the employee had daily contact. The employee alleged the patient groped her and engaged in other aggressive sexual conduct toward her. In overturning a lower court’s dismissal of the employee’s hostile work environment and retaliation claims, the 5th Circuit reminded employers that you have a duty to take reasonable steps to protect employees even in the most challenging environments for controlling behavior.
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A Patient Unlike any She Had Seen Before
Kymberli Gardner worked as a certified nursing assistant at an assisted living facility operated by CLC of Pascagoula. Gardner is no stranger to this type of work, having taken jobs with several in-home-care facilities, including two facilities specializing in the care of mentally disabled patients. But she had never encountered a patient like J.S., who had a bad reputation for groping female employees and becoming physically aggressive when he was reprimanded. J.S. suffers from several physical and mental illnesses, including dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s disease.
By the time Gardner was assigned to care for him, J.S. had a number of strikes on his record, including physically assaulting his bedridden roommate during a dispute about the television. He was known to be much more sexually aggressive toward female caregivers than other problematic residents were. J.S. sexually assaulted female caregivers by grabbing their breasts, buttocks, thighs, and other private parts. He also asked for explicit sexual acts on a regular basis and made lewd sexual comments toward female staff.
Gardner reported that she endured inappropriate behavior by J.S. “every day.” For example, he physically grabbed her and made repeated sexual comments and requests. Gardner and other CLC employees documented the behavior on his chart and reported it to their supervisors. One of Gardner’s former supervisors even witnessed J.S.’s sexually inappropriate behavior. Nevertheless, CLC leadership refused to send him for a psychiatric evaluation. When Gardner attempted to discuss J.S.’s behavior, the former supervisor laughed at her, and CLC’s administrator told her to “put [her] big girl panties on and go back to work.”
Gardner did just that, continuing to care for J.S until she was fired. The incident that led to her termination began when she was helping J.S. get out of bed and into a wheelchair. He tried to grope her and touch her breast as she bent over. When she tried to move out of the way, he punched her on the side of her breast. Gardner laid him down on the bed and went to get help from another nursing assistant. When the two women tried to get him out of bed, J.S. punched Gardner again. Gardner backed away, and J.S. grabbed the other nursing assistant’s “private area.”
Eventually Gardner, the nurse on duty, and the nursing assistant were able to get J.S. into the wheelchair. He then punched Gardner a third time. Her response to the third punch is in dispute. The nurse’s notes stated that Gardner “swung her own first over J.S.’s head” and her arm “brushed the top of his head.” Gardner denied swinging at J.S. The other nursing assistant said she put her hand up as if she was going to hit J.S., but did not.
Gardner allegedly stated while leaving J.S.’s room, “I am not doing shit else for [him],” and “I guess I’m not the right color” (presumably referring to the fact that she is African-American, while the nurse who helped calm him down is Caucasian). She then told the nurse and the facility administrator that she no longer would care for J.S. because of his continued harassment. She asked to be reassigned, but her request was denied.
After Gardner left work that evening, she went to the emergency room for treatment of the injuries she had sustained. She received workers’ compensation benefits and didn’t return to work for three months. When she returned from leave, she was fired. Her supervisor gave her three reasons for the termination: (1) engaging in insubordination by refusing to care for J.S., (2) violating his rights by swearing in front of him and making a “racist type statement,” and (3) attacking him by swinging over his head.
Following an altercation with another resident later that same day, J.S. was sent for a psychiatric evaluation. As a result of the evaluation, he was moved to an all-male “lockdown” unit.
Employee ‘Put on Her Big Girl Panties’ and Sued
Gardner filed suit in federal district court in Mississippi, asserting a variety of claims, including hostile work environment based on her sex and retaliation. The district court granted CLC’s motion for judgment without a trial and dismissed all of her claims. She appealed to the 5th Circuit.
In dismissing Gardner’s hostile work environment claims, the federal district court determined that it was “not clear . . . 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 reviewing the lower court’s dismissal of that claim, the 5th Circuit pointed out that the many years of unwanted sexual grabbing and explicit sexual comments Gardner endured could certainly be deemed severe or pervasive if the harasser didn’t have mental impairments. The court of appeals noted the complication in this case is that the harasser is a resident of an assisted living facility who suffers from dementia.
Twice before, the 5th Circuit has considered hostile work environments created by patients. In those cases, the court reviewed allegations of verbal harassment of caregivers by patients, including repeated propositions for sex. In both cases, the 5th Circuit determined the conduct wasn’t sufficiently severe or pervasive to create a valid claim. In reviewing the facts of this case, the 5th Circuit noted that despite its two previous decisions, there is no categorical bar on hostile environment claims arising from a patient’s harassment. In fact, the court pointed to other cases in which appeals courts have found harassment actionable when mentally disabled patients sexually assaulted female caregivers.
Turning to the facts presented in Gardner’s case, the 5th Circuit determined that J.S.’s conduct was more severe than the patients’ verbal harassment in the other two cases. The court noted that an employer must take steps to protect an employee once any physical contact progresses from occasional inappropriate touching to persistent sexual harassment or violence. Accordingly, the 5th Circuit reversed the district court’s dismissal of Gardner’s hostile work environment claim, finding the frequency and nature of J.S.’s conduct and its effect on her employment were enough for a jury to find that a reasonable caregiver would have viewed his behavior as sufficiently severe or pervasive even when his medical condition was taken into account.
The 5th Circuit noted that J.S.’s misconduct occurred daily and consisted of sexual assaults and violent outbursts. Further, his actions interfered with Gardner’s ability to perform her job, leaving her unable to work for three months. The court further explained that a jury could conclude that a reasonable caregiver wouldn’t expect a patient to grope her daily and injure her so badly that she couldn’t work or have her complaints met with laughter and dismissal by her supervisors.
The 5th Circuit next reviewed whether CLC should be liable for J.S.’s conduct because it knew or should have known about the hostile work environment and failed to take reasonable measures to stop it. The appeals court determined that CLC’s administration was well aware of J.S.’s sexually inappropriate conduct toward Gardner and others but failed to even attempt to remedy the situation. Not only did administrators laugh at Gardner’s complaints, but they refused to reassign her after J.S. punched her three times.
The court pointed out that even if the patient was unable to control his actions, CLC did have control over how it handled the situation. Eventually, after J.S. assaulted another patient, CLC did remove him from the assisted living facility and place him in an all-male facility. It could have done the same in response to Gardner’s reports of his repeated harassment and assault, but it refused to act. According to the 5th Circuit, CLC violated its duty to take reasonable steps to protect Gardner, a duty that exists even in the most challenging environments for controlling behavior. As a result, her hostile work environment claim was allowed to proceed to a jury trial.
The 5th Circuit also overturned the district court’s dismissal of Gardner’s retaliation claim. Part of the reason CLC gave for her termination was her refusal to care for J.S. Gardner claimed her refusal to care for him was protected activity because it was based on his harassment of her. The 5th Circuit agreed that her conduct was protected and said a jury would have to decide whether the termination was based on her protected activity. Gardner v. CLC of Pascagoula, L.L.C., 894 F.3d 654 (5th Cir., 6/29/18).
Take Action even if Alleged Harasser Is a Paying Customer
There are many lessons to be learned from this case, but the most obvious one is that you have a duty to protect your employees from a hostile work environment, even if it’s caused by paying customers, clients, or patients. Further, the fact that a physically or mentally ill harasser may not be able to control his behavior doesn’t change your duty to take actions to prevent and correct harassment in the workplace. Finally, all supervisors should be trained that a complaint of harassment must be met with seriousness and compassion, not laughing and mocking, as allegedly happened in this case.
Jennifer F. Kogos is a partner in Jones Walker’s labor and employment practice group and a contributor to Louisiana Employment Law Letter. She can be reached in New Orleans at jkogos@joneswalker.com.