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Aguiar v. Bartlesville Care Center, No. 10-5002 (10th Cir. Apr. 18. 2011)

In an unpublished decision issued today, the Tenth Circuit remands for trial the Title VII claim of a fired certified medication aide (CMA), who alleged that she was sexually harassed by a resident. The panel holds that there were genuine issues of material fact about whether the behavior was "severe or pervasive," and whether the employer did all it reasonably could to prevent the harassing behavior.

Aguiar v. Bartlesville Care Center, No. 10-5002 (10th Cir. Apr. 18. 2011):  Aguiar, the CMA, claimed that an elderly male resident often groped her and made unwelcome sexual remarks. The complaints began in January 2007, when the facility's records first indicate that the resident was demanding specific CMAs by name (plaintiff included) to attend his room and give him medication. The facility noted in the resident's file, at that time, that his "Care Plan" listed as a goal to help the resident "[d]emonstrate[] socially acceptable behaviors," and that the facility must "[d]iscourage resident from requesting only one CNA to care for him . . . [and] must always have 2 staff in room to care for resident."

By February 2007, the employee was regularly complaining to the employer that the resident harassed her. Even after the employer took steps to remove the plaintiff from taking care of the resident's needs, the resident sought out her out. The resident's alleged harassment "included kissing [Aguiar's] hand, running his hand down her back to her buttocks, and pulling her on his lap or on the bed, even when a second care giver was present." The only steps that the employer allegedly took to prevent the harassment were to verbally counsel the resident, put notations in his file, and send other CMA's to care for him, but the last measure (in turn) caused the resident to become more abusive.  The employer also claimed that it offered to move Aguiar to the other side of the building, but this fact was disputed.

The alleged harassment culminated in a public fight between Aguiar and the resident, in which the resident assaulted her with a wheeled cart and both called each other names. The next day, Aguiar was fired for abusing the resident.

In the ensuing litigation, the district court granted summary judgment on Title VII claims of harassment and retaliatory discharge, and a state law claim of negligent supervision. The retaliation claim failed on the ground that the decision maker was unaware that Aguiar had engaged in Title VII protected activity, while the other claims were dismissed on the ground that the facility took reasonable measures to prevent harm to Aguiar.

The panel reverses on the Title VII harassment and state law claims. It holds that the district court erred in finding that the behavior alleged was not "severe or pervasive," and was too hasty in assessing the record to determine whether there were triable issues of fact. On the latter point, the panel wrote:

"It is undisputed that in January and February 2007, the Center took some steps to end the harassment when it talked to the resident and ordered that two care givers be present when attending to him. Nonetheless, Ms. Aguiar contends that the Center could have and should have done more once it learned that these steps were ineffective. For its part, the Center says that it offered Ms. Aguiar the opportunity to move to the other side of the building and away from the resident. But Ms. Aguiar denies that any such offer was made, and that is how matters stand on summary judgment. Viewing the evidence in the light most favorable to Ms. Aguiar, we conclude that a rational trier of fact could find that the Center's response was inadequate. Because there are genuine issues of material fact concerning the Center's knowledge and the adequacy of its response, summary judgment was improperly granted on Ms. Aguiar's hostile work environment claim."

Because the district court granted summary judgment on the state-law claim on essentially the same ground, that claim too was remanded.

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