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Big Girl Panties Revisited
In March 2017, I wrote about Kymberli Gardner, a CNA at a for-profit nursing home who was subject to racial, verbal, sexual, and physical abuse in her work environment. When she and some of her co-workers tried to address their concerns and fears with management, they were told to “just put their big girl panties on and go back to work.” Her requests to be reassigned were denied. The patient injured Ms. Gardner and she told management that she would no longer provide care to her abuser. She was treated for her injuries and then was out on Worker’s Compensation for three months. When she returned to work, she was terminated for insubordination.
Ms. Gardner filed suit in federal court, claiming violations of her rights under Title VII of the Civil Rights Act of 1964. I was outraged that the trial court dismissed her case, essentially sending the message that health care workers sign up for this kind of abuse, “Gardner agreed to work with elderly, mentally diseased patients such as J.S., who could be expected to act out in normally unacceptable ways.” The court did not consider Ms. Gardner’s work environment to be objectively hostile or abusive.
Continuing with her hostile work environment and retaliation claims, she appealed the trial court’s decision to the Fifth Circuit Court of Appeals. The good news is that her case is not dead yet. The Fifth Circuit reversed the dismissal which allows the case to go to trial.
Health care workers caring for these populations are exposed to harassment and physical violence. The Fifth Circuit discussed Ms. Gardner’s claims within the context of the “difficult line-drawing problem of what separates legally actionable harassment from conduct that one should reasonably expect when assisting people suffering from dementia.” It determined that “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.”
The Fifth Circuit observed that Ms. Gardner’s employer was not helpless in trying to mitigate this patient’s behavior. It noted that other long-term care employers have assigned security, reassigned employees, or removed the patient from their facility. The Court further found that “CLC did not undertake measures to try to remedy the harassment. This violated its duty to take reasonable steps to protect its employees once it knows that they are subject to abusive behavior. That obligation to at least try to protect employees exists even in the most challenging environments for controlling behavior, such as prisons.”
Whether her employer will be held liable in her hostile workplace claim depends on whether a jury believes CLC knew or should have known of the hostile work environment and took reasonable measures to address it. Whether her employer will be held liable for retaliation in terminating her depends on whether a jury finds that the termination was retaliation for her refusing to treat her abuser.
Stay tuned – I intend to continue following this case. The oral arguments before the Fifth Circuit can be heard at this link:
https://www.courtlistener.com/mp3/2017/12/04/kymberli_gardner_v._clc_of_pascagoula_l.l.c._cl.mp3
Gardner v. CLC of Pascagoula, No. 17-60072, U.S. Court of Appeals for the Fifth Circuit, June 29, 2018, http://www.ca5.uscourts.gov/opinions/pub/17/17-60072-CV0.pdf
Elizabeth Leis Newman, Facility Failed to Take CAN’s Claims of Assault by Dementia Resident Seriously Judge Writes, McKnight’s Long-Term Care News, July 5, 2018, https://www.mcknights.com/news/facility-failed-to-take-cnas-claims-of-assault-by-dementia-resident-seriously-judge-writes/article/778396/
Sarah R. Skubas, Fifth Circuit Permits Employee Allegedly Harassed by Patient to Proceed to Trial, Health Care Workplace Update, August 1, 2018, https://www.healthcareworkplaceupdate.com/healthcare/fifth-circuit-permits-employee-allegedly-harassed-by-patient-to-proceed-to-trial/
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