Courts have ruled that employees who work with clients with diminished capacity present different challenges when establishing whether the nonemployee’s alleged harassment affected the terms and conditions of the employee’s employment. But where is the line on what can constitute actionable harassment when the alleged harasser is a nonemployee with diminished capacity? The Fifth Circuit Court of Appeals reviewed this very issue when reversing summary judgment for an employer on an employee’s claim for hostile work environment and retaliation. Gardner v. CLC of Pascagoula, LLC, No. 17-60072 (June 29, 2018).


The plaintiff, Kymberli Gardner, a certified nursing assistant at the Plaza Community Living Center, was discharged shortly after returning from a three-month leave of absence. Leading up to her separation, Gardner had been assigned to work with J.S., a patient who had been diagnosed with multiple “physical and mental illnesses including dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s disease.” J.S. also had a reputation for “groping female employees and becoming physically aggressive when reprimanded,” as well as a long history of violent and sexual behavior involving patients and staff. With regard to female staff members, J.S. would grab their “breast[s], butts, thighs, and try to grab [their] private areas.” J.S. would also solicit “explicit sexual acts on a regular basis” and would ask female employees to engage in sexual activity with him “all the time.” This behavior was noted as more aggressive than that of a typical nursing home patient.

Gardner and other staff members documented J.S.’s behavior in his chart. Gardner also made repeated complaints to her supervisor, who did not take significant action in response to the complaints. When Gardner complained to the administrator at the center, she was told to “put [her] big girl panties on.”

One day, as Gardner was assisting J.S. to go to therapy, J.S. tried to grope Gardner and touch her breast. As she tried to move him out of the way, he punched her on the side of her breast. Gardner brought in additional help, but J.S. once again punched Gardner. There is some dispute as to what happened during the interaction between Gardner and J.S., but there was an allegation that Gardner swung at, but missed, J.S., which Gardner denied. Gardner apparently left J.S.’s room stating that she did not intend to deal with J.S. anymore and that she was “not the right color” to help J.S. 

Gardner subsequently took a three-month leave of absence on workers’ compensation as a result of the injuries she received from J.S. during the final altercation. When she returned to work, she was discharged for insubordination (for refusing to work with J.S.), for violating J.S.’s resident rights (by swearing at him and making a racial comment), and for attacking him (by allegedly taking a swing at him).

The Fifth Circuit’s Analysis

Gardner filed suit under Title VII of the Civil Rights Act of 1964, alleging claims for a hostile work environment based on sex and for retaliation. Although the district court granted summary judgment for the employer, on appeal, the Fifth Circuit found that the actions Gardner was subjected to by J.S. were sufficiently severe and pervasive to alter the terms and conditions of her employment and was above what an employee working with patients with diminished capacity should have to endure. 

The Fifth Circuit also concluded that the employer knew of the harassment and did not try to protect Gardner. The Fifth Circuit noted that there were other things the employer could have done, including providing medication and additional testing to the patient, to improve the situation. The court also pointed to the fact that the employer moved J.S. to an all-male facility after an altercation with a patient but did not take such measures in response to his conduct with employees. 

Key Takeaways

Although some leeway may be given in relation to the conduct of nonemployees with diminished capacity, there can still be liability for employers if the nonemployee’s behavior exceeds the expected norms. Since there is no bright line on what constitutes actionable harassment in these types of cases, employers may want to review all complaints of harassment, especially complaints of repeated bad behavior, with a proactive eye to identify potential ways to mitigate the issue.


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