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Nursing Home Third-Party Hostile Work Environment Claim Revived

By George Khoury, Esq. on July 03, 2018 | Last updated on March 21, 2019

Nurse Kymberli Gardner's case against the nursing home where she used to work got some much needed attention from the Fifth Circuit Court of Appeals, which reversed the grant of summary judgment, allowing her case to proceed to trial.

Nursing homes and employees may want to pay careful attention to this case, as might other institutional employers and employees. That's because the case involves an employer's liability for a third-party-created hostile work environment in a setting where third-parties are expected to misbehave.

Brief Factual Background

Nurse Gardner was repeatedly sexually harassed by one of the nursing home's residents/patients, and though the management was aware of this patient's harassment of nurse Gardner and others, they didn't do anything to mitigate or stop it. After nurse Gardner was assaulted by this patient, she went out on workers' comp for three months, and upon her return, was terminated. She sued, making claims for hostile work environment and retaliation.

Hostile Work Environment Not Part of the Job

While the district court seemed convinced that the nursing home work environment is one where workers are required to endure sexual harassment and violence as part of their duties, the appellate court didn't see it that way. The appellate court seemed to look critically at the fact that the nursing home management moved the patient to an all-male, lockdown facility, that it also owned, after the patient in question attacked another patient. The appellate court questioned why this wasn't done after the patient attacked staff, which he had done before.

The Fifth Circuit explained that what makes a third party hostile work environment claim viable is not necessarily the third party's actions, but rather an employer's knowledge of the actions and failure to act, particularly when action would be reasonable. As the appellate decision seems to imply, a jury could easily find for nurse Gardner, particularly given that the management could have acted, but didn't, as evidenced by their later action.

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