towards the employees there's really three issues that we're going to address as we go forward one is whether or not the instances of the facts that's claimed by ms gardner arose to the level that would impose liability on the nursing home for the actions of j resident segment other issues whether or not ms garner presented direct evidence of retaliation or discrimination or complaints about the harassment and when she refused to work in the you know hostile environment and the third is whether or not testified that she even went directly to mr brady greg and especially want to upset the catheter care for this resident obviously hypersexual so catheter care is an issue with him she complained about having to do it they weren't doing them to prevent what he abusing these women in fact and some of the other nurses also testified that when they would complain to terri reynolds who was the administrator so the top of the chain they were told it's your job you have to do it they were told to put their big girl panties on and go do it was a quote from i believe at least one of the largest perhaps two of minutes in the record so we're not talking about just an isolated occasional inappropriate comments we're talking about two three years worth of verbal similar situations where there are some actually did do things to intervene actually put in behavior plans actually gave additional training to their nurses to deal with residents who in one case the kris case which was an eight circuit case  the court actually had that they even tried to intervene in that case but that the level of intervention was inappropriate so it's that summary judgment was inappropriate such that the case must proceed to a jury to determine if the environment was hostile and views of a such an line somewhere and our belief in what we believe the course of hoed is is that bright line growth simply physical contact coupled with repeated verbal harassment is where that line is physical contact is the line which was clearly crossed in this case compensation leave for several months and when and that would work and what's probably most egregious i believe is fact that's not even the reason he was sent out to a different nursing home he was not even removed from the facility until he assaulted a resident at the nursing home so his assault on his gardener and the undisputed fact that he was sexually berating assaulting her during this encounter one of the reason they were moved from the facility it was the fact that he harmed a resident later in that same day or maybe the next day but in close proximity there too what's your best evidence of the physical contact before the day in question when there's the assault that leads to seven different nurses testifying that it's going on including ms gardner on a nearly daily basis for the past two three years and when this guard is test looked at a lot of that it's fairly vague what's the best specific evidence i mean i see some of them say it was a continuous problem of verbal and physical but what's the most pacific evidence you can point to that really describes this groping or anything else like that  and several nurses all testified the same thing he would intentionally grab their buttocks or grab their private areas things of that nature none of them would sit there and describe the same as it took place because it happened so often you know we didn't go in to give me a specific they  happened at least weightlifting a daily basis for the city and i was constantly grabbing them and they would consulate complain about it they were told just write them up put it in your daily notes would do something about it that never happy and they put in the notes and it would be forgotten until it happened the next day and it continued for a very long period of time so what should the employer have to do because really a hostile work environment claim is ultimately about the employer's failure to remedy once and those problems are going on should they have done sent into these different facilities aside from that what should they have done well there would be several if you look at his record i mean he has severe medical issues that's correct and in the other cases from the other circuits those patients who had severe medical issues and the question here is is it because nothing was done your honor so we don't get to judge what should have been done something should have been done whether it was simply in this case we believe just simply transferring was allowing this gardener to work not work with him because the evidence shows that other nurses especially some of the white nurses that we have to deposition test what they were able to redirect him better than ms gardner was so when we get to the direct evidence of the retaliation discrimination that's kind of where ms gardner with any male nurses nurses who were able to better handle him yes he may grab them but he wouldn't punch them if if they said no but for whatever reason this gardener was in his fortunes are when we get to the district court say we run i would ride direct evidence of the retaliati discrimination based upon her gender but what the and that's where i mean that's the difficulty with these cases i mean if this were an employee you have a slam dunk case for sexual harassment and there's no question about it if this were a another employee doing this or a supervisor but it is in the nursing home has this obligation to care for this person who's got you know dementia severe medical issues it also obviously has an obligation to protect its employees and and make sure they're not in a environment so  it's just finding that balance in the series difficult because you see competing demands on the nursing home and i agree with you your honor and that's the issue here is that they did nothing to try to stem the tide to protect ms guard or the other employees just tell them one laughing about katherine care which at the very least something could have been at least not laughed ms gardner when she complained about it some sort of intervention i think the only form of intervention involved a registered nurse and all they that even took place but what happened is it's gone or asked to be removed from the situation which ms brandy greg also testified as the appropriate response to this type of situation and ultimately what happened was mr gardner was that it is a violation of title seven to require people to work in a discriminatory hostile or abusive environment or go back to marriage or savings bank events and for seventy seven us and that's it did she ask to be reassigned away from the patient before  advances again and the center of the hospital so at that point was gardener was essentially to the point i can't handle him other nurses can't let them treat him and they fired her for the law is very clear you cannot force someone to work in that type of environment  so it was retaliation and when the nursing home said miss gardner you're fired you're not going there with this patient yeah we know he's abusing you but you're not treating him so you're fired you have to show the hostile work environment was created before that day in question because after that day she went out on worker's comp and then she never well they fired her but she never had to endure dealing with him again because he was also removed to the other hospital so since since you have that element of the employer refusing to do something doesn't that have to be in response to this earlier harassment you're discussing later if you do something for months and years before but however sprint the law says one instance is enough if it's a very and agree just enough to hold to that the nursing home was aware of what was going on it was simply doing nothing to stop it except in the chris court there had been a plan put in place and trained for that resident but it was had to be wholly insufficient but again we don't even get to that point because there was no any it was a clinched fist or anything of that nature and again even then that just kind of guesses to a fact issue a preset was it an issue of her swinging over his head or was because that's never mentioned by the person to the terminations and since you bring that up your honor i want to point to the said well ms gregg the person who provides that testimony had nothing to do with the terminations she had nothing to do with anything after the day of the incident in fact in her testimony she goes there and she says the reason she that in her deposition which is in the record are there any documents and she's been suspended she said no it's just in my notes her notes miss terry reynolds the person who was the administrator handed all this didn't make notes about a suspension ms gardner was on a worker's compensation levy in this time period  so you got all this testimony from a person who yes there is a presumption that because she's the director of nursing she knows the facts but she rebut of those facts yourself when she got to the deposition and even looked at the time a nation documents that time she was involved the decision to terminate dillard more than they please the court my name is brad dillard i'm here on behalf of sale say at pascagoula the facts are fairly uncontroverted are laid out in the briefs the central issue in this case is whether or not so you'll see a pascagoula may be held liable for the actions of a physically disabled mentally impaired and diseased elderly individual who is not able to control his actions or care for his own needs i submit that it does not under the facts of this case or to their question maybe sometimes it can agree with with this all of a court there apparently is no bright line test in regard to this type of scenario which is an unfortunate all but i'll be it probably not unusual scenario in the long term care setting where an individual like j s who cannot control his own actions who cannot conform to societal norms but yet is unable totally unable to care for himself how do you console an individual like that what happened at the end of another facility the question i guess  in terms of the management of the facility that he was in that we're talking about is is that the right facility for the person apparently not is the answer and at the end of the day they moved him so  in terms of the management of the nursing home they had a patient that they figured out maybe later than they should or shouldn't be there in the meantime all this stuff happens your honor they  leave the record flicks they figured that out after he had physically assaulted ms gardner which had which had not ever occurred prior to this he also physically assaulted that same day another resident at that point mr j s became clearly a threat to employees and other residents and facilities promptly took steps to have him sent out for a psych evaluation and then transferred to a lockdown facility up to that point he had never exhibited he had never made not only to ms gardner but to others there's also testimony from all of these employees that that activity again is not uncommon in a nursing home setting when you're dealing with elderly impaired individuals who again cannot understand the nature of their actions that is something new in his garden the evidence is that he was by far the worst i mean was there anyone even comparable in this nursing home well there's testimony from one of the nurses ms tosh that indicated that he was no worse than other individuals who were sexually sexually aggressive there was testimony from other nurses that he was more sexually aggressive than other individuals ms gardner testified at length regarding her prior employment at other nursing  homes she admitted that she had it had encountered numerous other sexually aggressive individuals like mr j s that she had been trained on how to deal with him that that part of that training involves removing yourself from the situation until it calms down getting assistance with the patient as she did on october sixth twenty fourteen and notified the the management now if she did all that she also indicated that knowledge of a of a residence propensities to engage in sexually aggressive activity would allow her to prepare herself to deal with that they would be more standoffish when performing activities of daily life or in bringing assistance with her propensity to be sexually aggressive so before she began taking care of j s she knew of this propensity which she indicated was important to her and she knew how to deal with it she had received training again unfortunately  this is just not an uncommon scenario in the long term care industry now there would be enough in your mind to create a fact issue and hostile work environment if this doesn't get there what more would would testimony of the facts where he was six feet tall over two hundred pounds that's the case that mr wade referenced a moment ago where he physically pinned the plaintiff against the wall raised her shirt pressed himself against her committed a number of acts that in our case j s did not and was not visibly able to do in the turnbull case that involved a case where the plaintiff was actually physically sexually assaulted by the  who had a history of sexual assault in the ag your case that involved a situation a nursing home resident where although the resident had some physical disabilities he was able to emulate walk around the facility and had no mental impairment that individual also had a history of domestic abuse and was facing criminal charges because of that abuse and when you look at all those factors and apply those to our case  there's no history there where where of criminal matters involving sexual abuse or domestic abuse he was completely physically and mentally disabled unlock the assailants in the nonphysical cases in fact he suffered from dementia and psychosis parkinson's disease clonic your unary tract infections which mr ms gregg the deal in testified would only increase aggression and anxiety he had a total inability to emulate he was caught in that he had traumatic brain injury from a motor vehicle accident and was diagnosed with a personality disorder this was an elderly physically disabled mentally impaired individual like the individuals in canaan next eon who again could not control his own actions oh you know i don't have his exact age we were back to that information out of his records but it's my understanding he in early seventy's which is not elderly but compared but taken in connection with the physical disabilities and the mil impairments it created a very difficult situation for s any other nursing all right yeah i don't understand why i mean he had been there long enough that all the information you have given us they had they knew all so what  what's what's driving the nursing home to try to keep him there what's the act is that the economics or what i mean what why did why was he still there your i think part of the answer to described which again are not uncommon in this setting there's no indication in the record that he would have been appropriate for a lockdown said he had been sent out to the local hospital numerous occasions for  determination as to whether or not he was suffering from duty eyes which again increased his aggression and his anxiety those were clearly interventions that have been taken by the facility mr white stated there why do you think the physicals the striking i so much worse than the repeated groping of private parts you know i don't i don't minimize ms gardner's testimony about what was going on well and others don't discount that and whether you just kind of now we have to assume it's true for purposes summary judgment director i'm not going to prove a trial she's completely full of that but we have to assume it's true director i think in this particular case again give given these facts with this type of individual who again cannot apparently appreciate that what he is doing is an appropriate who has been redirected own a number of occasions and again i think it goes back to what what can the facility do with this individual he would be redirected he would be was a practice because unless there is a physician's order for sedatives those are not going to be administered sales c is a non restraint facility there are not just a limited number of things you can do now ms gardner did admit that her charge nurses when she would complain to them that several of them would go in the room and handle the situation if mr j s became sort of out of control for instance on looked area begins who was one of the char nurses over the plaintiff would go into his room and deescalate the situation of all the requests to ms gardner rebecca bolton another charge nurse who was over ms gardner of all her request would also go  back and did nothing and laughed at any allegations or complaints made by ms gardner simply not true is not supported by the record now whether the silly handled this to the satisfaction of ms gardner apparently not that's why we're here but the facility took reasonable steps to try and deescalate the situation to redirect j s to send him to the hospital to determine if he had a year in a tract infection and to get a psych evaluation the the federal bill rides for nursing home patients were found at forty two c a four for eighty three point twelve you know it makes it very difficult for a nursing home to discharge a resident and to do that there are specific reasons that a facility may discharge a resident who is receiving medicare or medicaid benefits such as j s our board which most or all of them are correct are on i'm up most most if not almost all in my experience ninety nine percent of the residents and nurses are medicaid or medicare patients receiving federal benefits the rich some of the reasons that are that a person can be transferred out of a nursing home is fair to pay if it's a private pay individual if that resident becomes a threat physical threat or danger to the safety of others in the building the building is not a provide him or her a level of care they need and i'm not bringing up the federal bill of rights to say that that is an absolute defense to the nursing home however it is a consideration in that if mr wade says well the facility should have simply moved him to another building they should have discharged him somewhere else it's not as easy as that there have to be specific reasons there has to be notice because according to the federal government the nursing home is his home he has a right to be there unless there's a reason not  unfortunately the activity exhibited by j s is not unexpected it is not expected in a nursing home setting with individuals like him any good looking at ms gardner history there is no indication that she or anyone else at the facility was singled out by j s and to be the subject of inappropriate sexual comments or groping or whatever it might be  apparently he he did not discriminate in regard to the the individuals that he would make such statements to now that is a fact i believe in in christe terminals that apparently those individuals were singled out by the assailants in that care position as she she just did not have the right to refuse to care for this person further on the grounds that he was he she couldn't handle him she said some of the white nurses could but he apparently acted differently toward her more physical more dangerous is that true mr wade indicated that i do not believe daughters no matter how long the record that's why i can't act cather from the brief and everything i've read he would he would act out with anyone i believe who was there are up there were there was testimony from the witnesses that it didn't matter if you were black or white  that he would make comments to you in acting appropriately towards you now the interesting part of this i believe is ms gardner based on her testimony did not refuse to care for j s the calls of the inappropriate touch her she stopped him in attempted to touch her left breast and she stopped him at that point he became agitated she was struck she left the room came back in with i believe a janice walk ins another her not because he had attempted to sexually touch her in an inappropriate manner or made those comments to her so the reason that she was terminated was again the failure to provide care to the resident in there's nothing in the record that would indicate that there were sufficient other staff that someone else could have easily been transferred to mr mr j s that day in question but the reasons were insubordination failure to zero or refuse to give me refusal to provide care to the resident cursing in front of the resident and also attempting to strike the resident the person in front of the resident goes back to the  patients bill of rights and that comes from the statement the witness statement of janice watkins a c n a in the room who indicated that on a ball being struck that ms gardner stated quote i'm not going to do shit else for him and left the room at that point oh oh also miss walk ins indicated that although this is a little bit different from her deposition testimony her statement indicates that when ms gardner threw up her hands that she was angry and agitated and she didn't quit matter judy tosh of the nurse who came in the room as well stated that clearly the point was angry and that she in fact did brush the residents hairline her head with h for the facility during this period she was the individual who was ultimately responsible and who oversaw all nursing care in the building including the care of the c n a she testified that she was involved in the investi room as to what had occurred and you're relying on or her statement about what occurred when she were not in the room is that right not only her statement but also the statements of g d talks the nurse throwing up her hands and in brushing his hairline rushin the top of his and those other witness statements from the people who were in the room first knowledge miss gray testified that she reviewed those and considered those part of her investigation as to what had occurred what did they wait to fire her until she came back from workers comp and i see the documents says her separation was held pending the completion of worker's comp and if she was insubordinate why not fire her right then when she was insubordinate and after the investigation limited time left i don't believe there's necessarily a bright line test that can be created for this type of scenario i would agree with the lower court that when you're looking at a situation with a patient such as j s who is mentally and physically impaired you cannot understand what is going on who is totally dependent upon c n a such as ms gardner for everything from brushing his teeth to clain in him after he is incontinent that deposition testimony i believe in the record we're going jesse's past where he had previously broken the former drug nurses hand by pulling her fingers back so far that they broke there's also another resident before the last resident who sent who was  the day that j s attacked ms gardner and then attacked another resident had attacked a resident in the nursing home before so to say there's no evidence of prior salts or incidents like this is just not accurate there were the barber pole or the former director of nursing had her hand broken by j s on a prior occasions and i don't recall the fact that circumstance what was happened but i do remember him breaking her hand in deposition testimony and other thing i think is important to point out is also as in the record here at the facility th sent to is a sister facility of the defendant it's not some random facility he was sent to he was sent to another facility owned and operated this lockdown facility which was actually owned by the same i guess the impression i ham it may not be accurate  the record may correct but just based on what opposing counsel has said and this is a very regulated area the way the nursing home handle something like this is carefully regulated so they i mean the nursing home is in a very difficult position these of the a patient like this i mean my question is why not just ship  out of there when the answer is in and it's a lot harder to do than you seem to think judge so this is and from the standpoint of everybody involved in this case it was a no win situation i mean has been rejected by district court in massachusetts already liggins i think is the name the court that was raised there and that court rejected are going the bill of rights for residents simply saying that yes the resident has rights but so do your employees and absolutely that's right i mean everybody's got rights in this deal ok everybody's got rights and there's i mean and this is not this is a common problem everybody's got rights reason he didn't react to ms gardner in the same fashion yes this behavior is common as testified to unfortunately by everyone but j s his behavior far exceed that of the typical nursing home resident the typical resident would do passing grope her you know sly's hand across the buttocks of a nurse but yes according to the nurses it wasn't a graze it was a flat out i'm going to grab if you tell me no i'm getting aggressive the typical resident wouldn't  attack to you if you said no you know they'd just go on with their day j s was not that way and another thing i believe that got most gardeners prior training from other facilities that she didn't receive from the defendant by the way is more evidence of how gracious this was