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Court Says Racial Slurs Against Black Health Aide Did Not Create Hostile Work Environment

Court Says Racial Slurs Against Black Health Aide Did Not Create Hostile Work Environment

“An objectively reasonable caretaker would not have been detrimentally affected” by patient’s use of N-word “all the time”

A federal District Court in Pennsylvania has dismissed a hostile work environment claim brought against a behavioral health facility by a black woman aide because “an objectively reasonable caretaker would not have been detrimentally affected” by her patient’s regular race-based harassment.

Tondalaya Davis took a job at Elwyn Institute in 2018 to help patients in its New Beginnings Program.  The Institute provides long-term residential care for severely impaired patients in a “step-down” program transitioning patients from a state mental hospital to a return to the community.  She took the job from a similar position at another organization.  She was assigned to work the 11 p.m. to 7 a.m. shift for “Patient X,” a patient she knew to be particularly difficult to deal with.

Davis had problems with Patient X from the beginning.  He “routinely” called her racial slurs such “orangutan,” “n----- bitch,” and “the Help.”   She testified that he used those terms against her and other black aides “all the time,” and had other names for white aides as well.  She claimed he engaged in sexually inappropriate behavior as well. 

She said she did not record “every little detail” of his behavior because it was “nearly constant” and “basically, a given.”  She said she thought he should be involuntarily committed to a mental hospital but was not because no other facility would accept him because of his history.

The incident leading up to her termination occurred in June 2018.  Patient X came out of his room about 1:20 a.m. saying that he had soiled his mattress on both sides and asking to sleep in the common area.  Davis’s supervisor said he could not do so and asked Davis to help him remake his bed.  She got a waterproof covering and instructed him how to make the bed.  She had recently received training saying that the program should not do things for patients, but should help them learn to do things for themselves.

Davis said she would assist Patient X, but would not do it for him.  When he said he would not do it himself, Davis asked the supervisor what to do and was told to go back and make the bed herself.  When she went back, Patient X still refused to make the bed, called her a “n----- maid” and threatened to get her fired.  When she left the room to get help from a male aide, he followed her and continued to curse at her.  She went back to the supervisor, who told her to make the bed or go home.  She went home.

The supervisor started termination proceedings the next day on the grounds of insubordination.

To prove a hostile work environment claim, the Court said, a plaintiff had to show that she suffered from intentional discrimination, that was severe and pervasive, that detrimentally affected her and would “detrimentally affect a reasonable person in like circumstances,” and that there was respondeat superior liability upon the employer where the employer is legally responsible for the acts of its employees.

The Court said she had to show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

Elwyn argued that she had failed to show a hostile working environment because it could not be responsible for the actions of the patient.  But before considering that argument, the Court, sua sponte, on its own initiative, found that “a reasonable person in like circumstances” would not be detrimentally affected by the circumstances.

It said that other courts had refused to accept evidence that racial slurs were used “all the time” and required more specific delineation of events.  While it accepted that the racial slurs might affect a reasonable person in many contexts, it found that they would not detrimentally affect a reasonable person in the context of this case, citing several prior cases rejecting the claim made by caregivers in other healthcare settings.

In this case, the Court said, Davis knew of the role when she accepted the job and knew that Elwyn was having trouble handling a particular patient.  It went on to conclude that while the racial slurs were “appalling,” “an objectively reasonable caretaker in this particular setting (i.e. a locked down psychiatric institute) would not have been detrimentally affected by Patient X’s race-based comments.”

The Court also found that there was no respondeat superior liability by Elwyn for the conduct of its patient and that her retaliation claims did not survive the agency’s showing of a legitimate non-retaliatory reason for the termination.  It dismissed all of the claims on summary judgment.  (Davis v. Elwyn, Inc., E.D. PA, No. 2:20-cv-05798, 3/31/22.)

YOU NEED TO KNOW

This is a difficult case and may have been properly decided on the ground that the employer had no respondeat superior liability for the conduct of its patient.  It wasn’t a situation in which the racial slurs came from an employee for which the employer would have been responsible.

But in this age of increasing sensitivity to discrimination against Blacks in this country, it is extraordinary for a white woman judge to tell a Black aide that it is objectively unreasonable for her to find the continuing barrage of racial slurs so upsetting that they constitute a hostile work environment.  We ask nurses and other aides to overlook language like this all the time and in most cases they do so.  But to hold as a matter of law that no matter how “appalling” or how frequent the language may be, they have to “suck it up” and proceed with their work is really disturbing.  This is especially true when the judge’s statement was totally gratuitous.  The argument was not made by the employer, and the same outcome of the case was reached on separate grounds.  There is a problem when a white woman in a powerful position tells a Black woman aide what is unreasonable as a matter of law when the decision maker has never experienced what it is like to be a Black woman in the workforce.

Jurisdiction: 
U.S. Dist. Ct. E.D. PA

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