Facility failed to take CNA's claims of assault by dementia resident seriously, judge writes

Share this content:

A certified nursing assistant who was allegedly repeatedly assaulted by a resident with dementia can sue her former employer over an allegedly hostile work environment, a court of appeals ruled last week.

Kymberli Gardner worked for CLC of Pascagoula LLC's facility, Plaza Community Living Center in Pascagoula, MS, for three years, court documents state, and she had experience with patients who were physically or sexually aggressive.

But one resident's behavior “rose to a new level,” according to the ruling from the U.S. Court of Appeals for the Fifth Circuit. The resident, called “J.S.” had physically assaulted his bedridden roomate, and would grab the breasts, thighs and butts of female employees, along with ask for explicit sexual acts on a regular basis, the most recent ruling states.

Gardner said she and other CLC employees documented J.S.'s behavior by routinely recording it on his chart and registering complaints with supervisors, court documents state.

However, the administrator allegedly told Gardner to “put [her] big girl panties on and go back to work.”

Ultimately, Gardner was fired following an incident where J.S. punched her and she refused to care for him anymore, although details of the firing are in dispute. But in his decision, Judge Gregg J. Costa castigated the senior living supervisors for mocking Gardner when she raised concerns.

“The administration knew of the harassment. CLC does not dispute that it was aware of J.S.'s treatment of his caregivers, and multiple people testified that they reported his behavior to management,” the ruling states. “The company had prior notice not only because of informal complaints but also because of the daily written notes made by the staff. In response to these concerns, CLC failed to even attempt to remedy the situation. Gregg reportedly laughed at Gardner when she complained about J.S.'s behavior, and there is no evidence that the administration took steps to protect its employees.”

The ruling overturned a previous three-judge decision awarding summary judgment to Plaza Community Living Center. Gardner has shown that her retaliation claim may be entitled to reach a jury and can proceed with her hostile work environment claim, the judge wrote.

In a comment to Bloomberg Law, a CLC attorney said it would evaluate the viability of an en banc appeal versus going to trial.

“The ruling does create an increased potential for liability for healthcare providers who deal with and care for mentally and physically disabled individuals,” L. Bradley Dillard said in the email to Bloomberg.

Judges Carolyn Dineen King and James L. Dennis joined Costa's opinion. J.S. was eventually moved to an all-male “lockdown” unit in Biloxi, MS, following another altercation with a resident and a psychiatric evaluation.