07-25-2018
Kymberli Gardner worked as a nursing assistant in an assisted living residence doing business as Plaza Community Living Center (PCLC). Ms. Gardner came to PCLC with experience in working with individuals that were mentally disabled and thus had dealt with patients who were “either physically combative or sexually aggressive.”Working for PCLC, she encountered such an individual. One of the elderly patients at PCLC suffered from dementia, traumatic brain injury, and mental illness. Staff and supervisors knew that he groped female employees and often became physically aggressive. While working with this patient, Ms. Gardner experienced his sexually inappropriate physical and verbal conduct. He grabbed her and made sexual comments. She recorded the conduct and reported it to supervisors. After this patient had to be transferred to a different wing because of his conduct, Ms. Gardner expressed her concerns again. She was told to “put [her]] big girl panties on and go back to work.” Events culminated in an incident where the patient grabbed Ms. Gardner’s breast and then proceeded to punch her several times. PCLC asserted that Ms. Gardner ended up swearing at the patient, made a statement about their different races, and tried to hit him. Her request to be reassigned was denied. She went out on leave because of his physical assault on her and was fired upon her return.
The Fifth Circuit Court of Appeals reviewed the case to determine whether she had alleged sufficient facts to present a case for sexual harassment to a jury. Sexual harassment must be sufficiently “severe or persuasive” such that a hostile work environment is created. For an employer to be liable for the harassing conduct of a patient, it must have known about it. The court found that Ms. Gardner had endured several years of unwelcome touching and remarks from this patient that could be found by a jury to be severe and pervasive harassment. What made this case distinct from many sexual harassment cases was the patient’s dementia. When individuals are incapable of modifying their behavior to conform to societal norms, caregivers must reasonably expect some inappropriate conduct. However, facilities also have a duty to protect their employees from physical contact that rises to the level of persistent sexual harassment or threat of physical harm. The circuit court concluded that the facts presented here were such that a jury could find in favor of Ms. Gardner. PCLC’s clear knowledge of his conduct both toward Ms. Gardner and others and its lack of serious response to the issue was also relevant to whether it should be held liable for the environment.