Why it matters: An employer may be liable for failing to take adequate remedial measures to end alleged harassment by a patient, a federal court judge in Hawaii determined in a case brought by a nurse. During the course of one week a patient directed profane language at the nurse twice; in one instance he also stood to yell at her, and she said she feared he was going to hit her. When the nurse changed the patient’s treatment schedule to avoid being alone with him, her employer – aware of the incidents – placed her on investigatory suspension and then terminated her. Denying the employer’s motion for summary judgment in the nurse’s Title VII suit, the court found the patient’s conduct to be sufficiently severe and pervasive for the claims to survive. In addition, a genuine issue of material fact existed as to whether the employer took adequate remedial measures to deal with the alleged harassment, the court said. The decision serves as an important reminder that employers can be liable for harassment by third parties, from patients to independent sales reps.

Detailed Discussion

Martha Wilson worked for Fresenius LLC as the Clinical Manager of the Community Dialysis Center of Lanai. Wilson was the highest-ranking employee at the location and responsible for coordinating all aspects of patient care, including the scheduling of patients.

While treating dialysis patient Stanley Turqueza, he became angry and he and Wilson got into a verbal altercation. During the altercation, Wilson claimed Turqueza removed his blood pressure cuff and stood up while yelling at her, “F-U, you f-ing bitch!” She said she was afraid he was going to hit her.

The next day Wilson spoke about the incident to a social worker at the Center. She treated Turqueza twice more without incident that week, but he got into another verbal altercation with a patient that resulted in a police report. After a meeting with the Center’s director of operations, Turqueza ran into Wilson and repeated his earlier remarks.

A few weeks later Turqueza filed a complaint with the state in an effort to have Wilson’s nursing license revoked. Wilson claimed she repeatedly expressed concerns about Turqueza’s abusive conduct to the director of operations and that he did not take any corrective action, even instructing her not to change Turqueza’s treatment times, despite her concern about being alone with him.

Wilson changed the treatment time and was placed on investigatory suspension before being terminated. She filed a lawsuit alleging Fresenius was liable for a hostile work environment of gender harassment in violation of Title VII.

U.S. District Court Judge Helen Gillmor denied Fresenius’ motion for summary judgment, first finding that the alleged harassment was severe and pervasive.

Wilson submitted evidence of two verbal attacks by Turqueza. “The two incidents occurred within a week of each other,” the court said. “Plaintiff has also submitted evidence to support her belief that Turqueza posed a physical threat. Plaintiff claims that Turqueza’s conduct was based on her gender, as Turqueza believed he could overpower a woman.”

Despite her repeated concerns, the court said Wilson additionally produced evidence that the operations director did not take her complaints about Turqueza seriously and prohibited her from changing his treatment time. “The prohibition required Plaintiff to continue to work with Turqueza, a patient who had repeatedly verbally abused Plaintiff and who was actively attempting to have Plaintiff’s nursing license revoked,” the court noted.

Turning to the adequacy of the employer’s remedial action, Judge Gillmor emphasized that Fresenius had actual knowledge of Turqueza’s conduct toward Wilson and yet provided no evidence that anyone at the Center counseled him on his conduct toward her or warned him that his actions could affect his ability to receive treatment there.

The court said the employer even furthered the allegedly hostile environment by preventing Wilson from changing Turqueza’s treatment time. “Fresenius put Plaintiff in a position of choosing between continuing to treat Turqueza at a time when Plaintiff was alone with him at the clinic, and being suspended,” Judge Gillmor wrote, finding a genuine issue of material fact with regard to whether the employer undertook adequate remedial measures to end the alleged harassment.

To read the order in Wilson v. Fresenius Medical Care Oahu, click here.