U.S. District Judge Gregg Costa of Galveston.

The U.S. Court of Appeals for the Fifth Circuit has allowed a nurse at an assisted living center to sue her former employer for fostering a hostile workplace environment after she was allegedly  assaulted repeatedly by a resident who suffers from dementia.

While appellate courts have allowed workers to sue their employers over the actions of nonemployees for contributing to a hostile workplace environment in certain circumstances, the Fifth Circuit noted that Gardner v. CLC was especially difficult to resolve because the patient who allegedly caused the hostile work environment had a diminished capacity.

The case involves Kymberli Gardner, who worked as a certified nursing assistant in a Mississippi assisted living facility operated by CLC of Pascagoula. Gardner was experienced in working with mentally disabled patients and trained in defensive and de-escalation tactics for aggressive patients but what she experienced with one patient at CLC rose to a new level, according to the decision.

Gardner was assigned to J.S., an elderly resident who had a reputation for groping female employees and becoming physically aggressive when reprimanded. J.S. had been diagnosed with dementia, traumatic brain injury and had a long history of violence and sexual behavior towards patients and staff. J.S. also regularly asked for sexual favors and repeatedly made lewd comments to female staff, the decision said.

J.S.'s behavior was not a secret to those who ran the assisted living facility. After a CLC supervisor witnessed him behaving in a sexually inappropriate manner, J.S. was transferred to a new wing, according to the decision. But CLC was not always responsive to complaints about his behavior and declined to have him undergo a psychiatric evaluation after he assaulted his roommate.

Gardner attempted to discuss her concerns about J.S.'s behavior, but was laughed at by one CLC administrator and told by another to “'put her big girl panties on and go back to work,'” according to the decision.

The incident that ultimately lead to Gardner's termination occurred when she was getting J.S. out of bed and he began to grope her and touch her breast. When she moved out of the way, J.S. punched her on the right side of her breast. After another nursing assistant came to help, J.S. punched Gardner a second time, began to grab another nursing assistant's “private area” and punched Gardner a third time, the decision said.

Gardner's response to the assault is disputed. A summary filed by a CLC supervisor claimed Gardner swung her first above J.S.'s head and brushed the top of it but Gardner denied swinging at J.S. Gardner also allegedly commented “I guess I'm not the right color” because a white nurse was able to calm J.S. down whereas Gardner, a black nursing assistant, could not.

Gardner later refused to care for J.S. because of the harassment and asked to be reassigned by her supervisors but her request was refused. J.S. assaulted another resident later that day and was later moved to an all-male “lockdown” unit in another city. Gardner left work, went to the emergency room for treatment for her injuries and did not return to work for three months, during which she received worker's compensation.

Gardner was fired after she returned to work for three reasons: insubordination, violating J.S.'s rights and attacking him. She later sued CLC for a variety of employment discrimination claims. But the trial court dismissed her claims against CLC including a claim of hostile work environment. The trial court concluded that a hostile work environment did not exist and explained that it was not clear whether “attempts to grope and hit are beyond what a person in Gardner's position should expect of patients in a nursing home.”

Gardner appealed that decision to the Fifth Circuit.

In its decision, Judge Gregg Costa noted that other circuit courts have allowed employees to sue employers when patients engaged in physical harassment. But Gardner's case presented a “difficult line-drawing problem” for the Fifth Circuit of what separates legally actionable harassment from conduct that one should reasonably expect when assisting people with dementia.

Ultimately, Costa concluded that CLC was aware of J.S.'s assaults and did not do enough to prevent them and allowed Gardner's hostile workplace environment claim to go to trial.

“There may be situations in which no measures can prevent an ill patient's physically aggressive behavior so the nursing home is put to the difficult choice of either evicting the patient from its care or allowing the harassment of its employees to continue. We need not decide the legal implications of that problem because this case does not present it. CLC did not undertake measures to try to remedy the harassment,” Costa wrote.

“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,” Costa wrote. “Gardner's hostile work claim can proceed to trial.”

Daniel Waide, a Hattiesburg, Mississippi, attorney who represents Gardner, said he was pleased with the decision.

“The biggest takeaway is the Fifth Circuit seems to lay a line in nursing cases dealing with people with dementia,” Waide said. “Once you cross the line from verbal to physical—once you get to the groping stage—that's harassment and the employer needs to do something about it.”

Lamar Bradley Dillard, a Tupelo, Mississippi, attorney who represents CLC, did not return a call for comment.