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Gardner v. CLC of Pascagoula, L.L.C., No. 17-60072 (5th Cir. June 29, 2018)

The Fifth Circuit vacates and remands summary judgment in a Title VII case, holding that the record presents a genuine dispute of material fact whether an assisted living facility took reasonable precautions to prevent a resident from sexually harassing a nurse, and also whether she was retaliated against when--as a self-protective measure--she refused to attend the harasser.

Gardner v. CLC of Pascagoula, L.L.C., No. 17-60072 (5th Cir. June 29, 2018): The panel begins by noting that the residential and therapeutic setting of this case sets it apart from other sex harassment cases: "The unique nature of that workplace is an important consideration. As we and other courts have recognized, the diminished capacity of patients influences whether the harassment should be perceived as affecting the terms and conditions of employment."

A long-term male resident (designated as "J.S.") "had a reputation for groping female employees and becoming physically aggressive when reprimanded." He had been "diagnosed with a variety of physical and mental illnesses including dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson's Disease." The plaintiff alleged that she had to put up with daily taunts, propositioning, and even sexual assault.

Plaintiff's former supervisor and later director of nursing (Gregg) witnessed J.S.'s behavior directly and also received complaints from nurses. He was ordered transferred to a different wing, but "[t]hey declined ... to have him undergo a psychiatric evaluation after he assaulted his roommate." In response to plaintiff's complaints, she was told to "put [her] big girl panties on and go back to work."

The harassment allegedly culminated in a confrontation between the plaintiff and the resident, where the resident repeatedly hit her (causing injuries severe enough to require several months of medical attention) and the plaintiff reportedly swung back, cursed in front of the patient, and made a derogatory racial remark (Gardner is Black, J.S. is white). She asked to be reassigned, a request that was denied. When Gardner returned to work from medical leave, she was fired for (1) insubordination; (2) violating J.S.'s resident rights; and (3) attacking the resident.

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."

The Fifth Circuit reverses. After quickly holding that "the multiple years of unwanted sexual grabbing and explicit comments Gardner endured could certainly be deemed severe and pervasive harassment"-noting that "only one of those is necessary"-the panel focuses on the special "complication" that "the source of the harassment is the resident of an assisted living facility who suffers from dementia." The standard of liability for the facility must take "due account of the unique circumstances involved in caring for mentally diseased elderly patients" (internal quotation marks omitted).

After reviewing the circuit's prior case law (and the decisions of sister circuits) about harassment by patients in hospitals and nursing homes, the panel holds that even in such a workplace, a "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." Under these facts, Gardner made out a case of severe or pervasive harassment:

"J.S.'s inappropriate conduct occurred daily. His conduct was far more severe than other residents' and consisted of physical sexual assault and violent outbursts. J.S.'s physical assault on Gardner took his behavior outside the realm of a 'mere offensive utterance.' And his actions interfered with her work performance, leaving Gardner unable to work for three months. 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 the administration."

Moreover, the panel holds that a jury could find that the employer did not take reasonable steps to prevent or correct the harassment:

"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 the situation. Gregg 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.'"

The plaintiff also offered alternatives that the employer never used, including:

"requiring two or more caregivers at a time, using medication to control behavior, or transferring a problematic patient to a more appropriate home. 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 only after J.S. assaulted another patient. No reason is given for 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 remanding the harassment claim for trial, the panel also reverses summary judgment on Gardner's retaliation claim. The interesting legal issue was whether her avoiding the harasser by refusing to provide care might be a protected activity. There was certainly direct evidence that she was fired for this specific infraction (i.e., Gardner's "insubordination" for her "refusal to provide J.S. care.") "We note that there is a body of caselaw addressing when a refusal to engage in work that the plaintiff believes is subjecting her to unlawful conduct qualifies as protected activity." Because the issue was not briefed, the panel remands it back to the district court.

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