• Case 5:04-cv-00872-FB

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

c~_;"
W!S
BY _"_

" ,', ,"" ;1'".5:''j

Plaintiff,

~SA04CA0872

§

Civil Action No. _ _._.~_ __

v.

§

§ COMPLAINT &

NEXION HEALTH AT BROADWAY, INC. § JURY TRIAL DEMAND

DIBIA BROADWAY LODGE,

§

§

Defendant.

§

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of

the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of race, and to

provide appropriate relief to Terrance Johnson who was adversely affected by such practices. The

Equal Employment Opportunity Commission (the "Commission") alleges that Terrance Johnson was

subjected to unlawful race-based harassment from a non-employee third party under the control of

Defendant Nexion Health at Broadway, Inc. d/b/a Broadway Lodge ("Broadway Lodge"); and that

Broadway Lodge knew or should have known of this harassment but took no prompt or remedial

action to stop the harassment because of Mr. Johnson's race, Black.

JURISDICTION AND VENUE

l. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.c. §§ 451, 1331, 1337, 1343

and 1345, This action is authorized and instituted pursuant to Section 706 (f) (1) and (3) ofTitle VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 (f) (1) and (3) ("Title VII") and

Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a.

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...

2. The employment practices alleged to be unlawful were committed within the

jurisdiction of the United States District Court for the Western District of Texas, San Antonio

Division.

PARTIES

3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the

United States of America charged with the administration, interpretation and enforcement of Title

VII, and is expressly authorized to bring this action by Section 706 (f) (1) and (3) of Title VII, 42

U.S.C. § 2000e-5 (f) (1) and (3).

4. At all relevant times, Defendant Broadway Lodge has continuously been a Delaware

Corporation doing business in the State ofTexas and the City ofSan Antonio, and has continuously

had at least fifteen employees.

5. At all relevant times, Defendant Broadway Lodge has continuously been an employer

engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g) and (h) of

Title VII, 42 U.S.C. §§ 2000e (b), (g) and (h).

STATEMENT OF CLAIMS

6. More than thirty days prior to the institution of this lawsuit, Terrance Johnson filed

a charge with the Commission alleging violations of Title VII by Defendant Broadway Lodge.

7. All conditions precedent to the institution of this lawsuit have been fulfilled.

8. Since at least March 2003, Defendant Broadway Lodge has engaged in unlawful

employment practices at its San Antonio, Texas facility, in violation of Section 703 (a) (1) of Title

VII, 42 U.S.C. § 2000e-2(a)(I). The unlawful practices carried out against Terrance Johnson

because of his race, Black, include:

Plaintiff's Original Complaint

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(1) Allowing and condoning Terrance Johnson's subjection to race-based harassment from a non-employee third party; and

(2) Failing to take prompt or remedial action to stop the unlawful harassment.

9. The effect of the practices complained of in paragraph 8 above has been to deprive

Terrance Johnson ofequal employment opportunities and otherwise adversely affect his status as an

employee, because of his race.

10. The unlawful employment practices complained of in paragraph 8 above were

intentional.

11. The unlawful employment practices complained of in paragraph 8 above were done

with malice or with reckless indifference to the federally protected rights of Terrance Johnson.

PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a permanent injunction enjoining Defendant Broadway Lodge, its officers,

successors, assigns, and all persons in active concert or participation with it, from engaging in

conduct which creates and/or permits a hostile work environment on the basis ofrace as well as any

other employment practice which discriminates on the basis of race;

B. Order Defendant Broadway Lodge to institute and carry out policies, practices, and

programs which provide equal employment opportunities for Blacks, and which eradicate the effects

of its past and present unlawful employment practices;

C. Order Defendant Broadway Lodge to make whole Terrance Johnson, by providing

compensation for past and future pecuniary losses resulting from the unlawful employment practices

described in paragraph 8 above, including but not limited to, job search expenses, relocation

expenses and medical expenses, in the amounts to be determined at trial;

Plaintiff's Onginal Complaint

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D. Order Defendant Broadway Lodge to make whole Terrance Johnson by providing compensation for past and future nonpecuniary losses resulting from the unlawful employment practices complained ofin paragraph 8above, including but not limited to, emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be detennined at trial;
E. Order Defendant Broadway Lodge to pay Terrance Johnson punitive damages for its malicious and reckless conduct described in paragraph 8 above, in amounts to be detennined at trial;
F. Grant such further relief as the Court deems necessary and proper in the public interest; and
G. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.

Respectfully submitted,
ERIC S. DREIBAND General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
~I>~
ROBERTB. HARWIN Regional Attorney District of Columbia Bar No. 076083

Plaintiff's Onginal Complaint

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ervisory Tria Attorney xas State Bar No. 19708300

Trial Attorney Texas State Bar No. 24014498
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Antonio District Office 5410 Fredericksburg Rd., Ste 200 San Antonio, TX 78229-3555 Telephone: (210) 281-7613 Facsimile: (210) 281-7669
ATTORNEYS FOR PLAINTIFF

Plazntiff's Ongmal Complaint

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISION

§

§

Plaintiff,

§

§

V.

§

§

NEXION HEALTH AT BROADWAY, §

INC. D/B/A BROADWAY LODGE

~§

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Defendant.

§

CIVIL ACTION NO. SA-04-CA-0872-FB

TERRANCE JOHNSON'S COMPLAINT IN INTERVENTION Intervenor, Terrance Johnson files this Complaint in Intervention as a party-plaintiff, as authorized by Federal Rule of Civil Procedure 24.
I. PARTIES
1. Intervenor, Terrance Johnson is an individual who is a citizen of the State of Texas, City of San Antonio.
2. Plaintiff, Equal Employment Opportunity Commission ("EEOC") has appeared herein and may be served through its counsel of record.
3. Defendant, Nexion Health at Broadway, Inc. d/b/a Broadway Lodge ("Broadway Lodge') has appeared herein and may be served through its counsel of record.

J/

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9. Intervenor is an African-American employee protected under Title VII.
10. Defendant is an employer within the meaning of Title VII.
11. Defendant intentionally discriminated against Intervenor in violation of Title VII by creating a racially hostile work environment. Specifically, Intervenor was subjected to racial comments and treatment by one of Defendant's residents. The conduct and comments were of a continuing nature during Intervenor's employment with Defendant.
12. Intervenor complained about the conduct to Defendant. Defendant did not exercise reasonable care to prevent, investigate and cure Intervenor's allegations of racial harassment. Instead, Defendant ratified the wrongful conduct by failing to take appropriate remedial action after Defendant became aware of the conduct.
13. Defendant's intentional discriminati.()n also resulted in a tangible employment action against Intervenor. After Intervenor complained about the racial harassment, Defendant began to unjustly criticize Intervenor's work and began to build a bogus paper trail to justify Intervenor's termination. Intervenor was terminated on or about July 23, 2003 because of his race. Defendant's reasons for the termination were a pretext for the unlawful discrimination. Defendant's conduct violated Title VII and 42 U.S.C § 1981.

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c. Past and future compensatory damages;

d. Exemplary and/or punitive damages;

e. An award of attorney's fees at trial and on appeal;

f. Costs of court including expert fees;

g. Prejudgment and postjudgment interest as provided by law; and

h. All other relief the court deems appropriate.

Respectfully submitted,

GRAVELY & PEARSON, L.L.P. Riverview Towers 111 Soledad, Suite 300 San Antonio, Texas 78205 Telephone: (210) 472-1111 Facsimile: (210) 472-1110

Matthew R. Pearson State Bar No. 00788173 Marc E. Gravely State Bar No. 00787582

ATTORNEYS FOR INTERVENOR

CERTIFICATE OF SERVICE

-.:1 I hereby certify that a true and correct copy of the above and foregoing instrument will be
sent via regular mail on this day of December, 2004 to the following counsel of record:

Edward Juarez, Trial Attorney Equal Employment Opportunity Commission San Antonio District Office 5410 Fredericksburg Rd., Suite 200 San Antonio, Texas 78229

Ten'ence B. Robinson James M. Neel NEEL & HOOPER, P.e. 1700 West Loop South, Suite 1400 Houston, Texas 77027

MATTHEW R. PEARSON ~ 5

 
 Equal Employment Opportunity Com’n v. Nexion Health at..., Not Reported in...

2005 WL 3337325 Only the Westlaw citation is currently available.
United States District Court, W.D. Texas, San Antonio Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and
Terrance JOHNSON, Plaintiff-Intervenor, v.
NEXION HEALTH AT BROADWAY, INC. d/b/a Broadway Lodge, Defendant.
No. Civ.A.SA-04-CA-872FB. | Sept. 28, 2005.
Attorneys and Law Firms
Robert B. Harwin, Edward Juarez, Judith G. Taylor, San Antonio, TX, for Plaintiff.
Matthew R. Pearson, Marc E. Gravely, Gravely & Pearson, L.L.P., San Antonio, TX, for Plaintiff-Intervenor.
Terrerce B. Robinson, Neel & Hooper, Houston, TX, for Defendant.
Opinion
ORDER ACCEPTING MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES
MAGISTRATE JUDGE
BIERY, J.
*1 Before the Court are the Memorandum and Recommendation (docket no. 37) of the United States Magistrate Judge and the written objections (docket no. 39) thereto filed by plaintiff and plaintiff-intervenor (“plaintiffs”).
Where no party has objected to a Magistrate Judge’s Memorandum and Recommendation, the Court need not conduct a de novo review of the Memorandum and Recommendation. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.”). In such cases, the Court need only review the Memorandum and Recommendation and determine whether it is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989).

On the other hand, any Memorandum and Recommendation to which objection is made requires de novo review by the Court. Such a review means that the Court will examine the entire record, and will make an independent assessment of the law. The Court need not, however, conduct a de novo review when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir.1987).
The Court has thoroughly analyzed plaintiffs’ submission in light of the entire record. As required by Title 28 U.S.C. § 636(b)(1)(c), the Court has conducted an independent review of the entire record in this cause and has conducted a de novo review with respect to those matters raised by the objections. After due consideration, the Court concludes plaintiffs’ objections lack merit.
The Equal Employment Opportunity Commission (“EEOC”) instituted this lawsuit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. and 42 U.S.C. § 1981a, alleging Terrance Johnson, a former employee of Nexion Health at Broadway, Inc. d/b/a Broadway Lodge (“Nexion”), was subjected to a racially hostile work environment by the behavior of a non-employee third party. Mr. Johnson subsequently intervened as a plaintiff. Nexion filed a motion for summary judgment, to which the EEOC and Mr. Johnson jointly responded. The Magistrate Judge recommends the motion be granted and summary judgment entered in Nexion’s favor.
STANDARD OF REVIEW
Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 506 U.S. 845, 113 S.Ct. 136, 121 L.Ed.2d 89 (1992). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); In re Gleasman, 933 F.2d 1277, 1281 (5th Cir.1991).
*2 A party seeking summary judgment bears the initial
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Equal Employment Opportunity Com’n v. Nexion Health at..., Not Reported in...

burden of informing the Court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The party opposing a motion must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 257. All of the evidence and inferences drawn from the evidence must be viewed in the light most favorable to the party opposing the motion for summary judgment. Matsushita Elec. Indus. Co., 475 U.S. at 587.
TITLE VII
Title VII makes it “an unlawful employment practice for an employer ... to discharge ... or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race....” 42 U.S.C. § 2000e-2(a)(1). The standard of proof for employment discrimination under Title VII also applies to 42 U.S.C. § 1981 claims. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316-17 (5th Cir.2004). Under the shifting burden framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for circumstantial evidence cases of employment discrimination, a plaintiff must first make a prima facie showing of discrimination, after which the employer must articulate a legitimate, non-discriminatory reason for the adverse employment action, followed by the plaintiff’s opportunity to establish by a preponderance of the evidence that the articulated reason was merely a pretext for unlawful discrimination. Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 511 (5th Cir.2003).
To prevail on a hostile work environment claim, a plaintiff must prove: (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment of which plaintiff complained was based on race; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take remedial action. Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir.2003); see also Septimus v. University of Houston, 399 F.3d 601, 611 (5th Cir.2005). He must subjectively perceive the harassment as sufficiently severe or pervasive, and this subjective perception must be objectively reasonable. Frank, 347 F.3d at 138. The fact-finder must consider the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance. Id.

BACKGROUND
As set forth in the Memorandum and Recommendation, Mr. Johnson, who is African-American, belongs to a protected group. The summary judgment evidence establishes he was subjected to unwelcome harassment based upon his race. Nexion operates nursing home facilities, whose residents consist mainly of elderly persons with various physical and mental ailments such as dementia, neuroses, schizophrenia, and Alzheimer’s disease. Mr. Johnson was employed at a Nexion facility as a certified nurse’s assistant caring for the daily needs of the patients. One of the residents Mr. Johnson cared for was a seventy-year-old Hispanic man, Pete Patino, who had been diagnosed with schizophrenia and who had a history of mental illness since the age of thirteen.
*3 Medical records indicate Mr. Patino was delusional about Blacks and Hispanics. Beginning in the spring of 2003, Mr. Patino repeatedly made racially disparaging remarks about Caucasians, African-Americans and Hispanics. For example, he used terms such as “wetback,” “gringo,” “stupid Anglo,” and “white trash.” Mr. Patino’s remarks about Blacks were directed against Mr. Johnson. He repeatedly referred to Mr. Johnson as a “n ____ r” and made statements such as “What are you doing in my room n ____ r!,” “I don’t want n ____ rs in my room.,” “There’s an ____ r in the building, call the cops.,” and “all n ____ r are rapists and murders; n ____ r are no good; they steal; I hope they all burn in hell.” Mr. Patino made these disparaging comments three to four times per week and they were often witnessed by other Nexion employees. Mr. Johnson maintains he reported this racial harassment to charge nurses, the assistant director of nursing, the director of nursing and the facility administrator, but no remedial action was taken.
On July 12, 2003, Mr. Patino complained that Mr. Johnson entered his restroom, put a finger in his face, and stated: “Don’t you cause anymore trouble.” Nexion suspended Mr. Johnson pending an investigation. During the investigation, Mr. Johnson stated he had no contact with Mr. Patino on July 12th. However, another employee stated she did see Mr. Johnson enter Mr. Patino’s room that day. Based upon management’s belief that Mr. Johnson had lied about his involvement, Nexion terminated his employment on July 23, 2003, for resident abuse. Mr. Johnson asserts that Mr. Patino’s racial harassment, which was known to Nexion management and was unremedied, led to his being discharged.
DISCUSSION
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Equal Employment Opportunity Com’n v. Nexion Health at..., Not Reported in...

The Magistrate Judge relies on Cain v. Blackwell, 246 F.3d 758 (5th Cir.2001), as authority which precludes plaintiffs from establishing a hostile work environment. Plaintiff, Eva L. Cain, was a nurse employed by defendant Cindy Blackwell, the owner and manager of Advanced Home Health, which provided care-taking services in the home, such as bathing, grooming, cooking and shopping. Id. at 759. Ms. Cain agreed to work with Harry Marcus, an elderly man suffering from Alzheimer’s and Parkinson diseases, who was often disoriented and irritable and who had been declared incompetent by a Texas state court. Id. Mr. Marcus repeatedly propositioned Ms. Can for sex and repeatedly called her disparaging names, including racial epithets. Id. Ms. Cain reported the comments to her immediate supervisor and to Ms. Blackwell. Id. When Ms. Cain also reported that another employee had committed a lewd sex act in front of her while at Mr. Marcus’s home, she was offered a reassignment. Cain, 246 F.3d at 759. Ms. Cain chose to remain with Mr. Marcus so long as the other employee did not work with her. Id.
Sometime later, Ms. Blackwell met with Ms. Cain to discuss her nursing notes which contained references to Mr. Marcus’s inappropriate behavior. Id. Ms. Blackwell told Ms. Cain the information belonged in an incident report, not in her nursing notes, and asked Ms. Cain to rewrite her notes. Id. Ms. Blackwell suspended Ms. Cain for a week with pay and Ms. Cain agreed to rewrite the notes. Id. Ms. Cain, however, returned the next day and informed Ms. Blackwell her nursing notes were not inappropriate and refused to re-write them. Cain, 246 F.3d at 759. Based on Ms. Cain’s insubordination and Ms. Blackwell’s belief that Ms. Cain lied about a conversation with another Advanced employee, Ms. Blackwell terminated Ms. Cain’s employment. Id. at 759-60. Ms. Cain brought suit against her former employer alleging she was subjected to a hostile work environment based on sexual harassment. Id. at 760. The Honorable Walter S. Smith, Jr., Chief United States District Judge for the Western District of Texas, granted defendant’s summary judgment. Id.
*4 The Fifth Circuit Court of Appeals affirmed, finding the summary judgment evidence failed to establish a prima facie hostile work environment claim. Id. After noting the requirement that the fact-finder must consider the frequency of the discriminatory conducts, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance, the Court concluded the behavior of which Ms. Cain complained, though clearly crude, humiliating, and insensitive, did not rise to the level of harassment. Cain, 246 F.3d at 760. The Court set forth its reasons for finding the comments of an elderly and impaired individual were insufficient to establish harassment. Id. at 760-61. The Fifth Circuit Court of Appeals explained:

The home health care industry was created to assist individuals who lack the ability to care for themselves. Many of these individuals become dependent on home health care as a direct result of debilitating diseases such as Alzheimer’s and Parkinson’s. As an Advanced employee, Cain’s daily routine included dealing with the victims of those diseases and their particular failings. In this context, Marcus’s improper requests and tasteless remarks can not form the basis of a justiciable claim for sexual harassment.... Marcus’s unacceptable but pitiable conduct was not so severe or pervasive as to interfere unreasonably with Cain’s work performance or, given the circumstances, to create an abusive working environment.
Id.
The Magistrate Judge noted the behaviors which were found to be insufficient in Cain are almost identical to those in the case at bar. He also noted the Fifth Circuit found such behavior cannot constitute actionable harassment under Title VII because individuals such as Mr. Marcus and Mr. Patino are restricted to receiving health care at home or placed in such residential facilities precisely because of their uncontrollable propensities. Relying upon Cain, the Magistrate Judge concluded plaintiffs are precluded from establishing a hostile work environment claim based on race under the circumstances of this case.
In their objections, plaintiffs reargue their position that the Cain case should not be read so broadly. However, the Fifth Circuit Court of Appeals in Cain specifically referenced the “unique circumstances” which rendered “the elderly and obviously impaired Marcus’s commentary insufficient to establish harassment.” 246 F.3d at 760. The unique circumstances to which the Fifth Circuit referred involved the health care setting “created to assist individuals who lack the ability to care for themselves.” Id. As the plaintiff in Cain, Mr. Johnson agreed to work with Mr. Patino and other elderly individuals whose debilities required them to have special care.
Plaintiffs attempt to distinguish Cain on several grounds. They argue there is no evidence Mr. “Patino’s racial harassment was the uncontrollable product of his mental illness.” The offender in Cain was an elderly man suffering from Alzheimer’s and Parkinson diseases, who
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Equal Employment Opportunity Com’n v. Nexion Health at..., Not Reported in...

often was disoriented and irritable and who had been declared incompetent by a Texas state court. Id. at 759. However, the Fifth Circuit in Cain did not cite to or rely upon any evidence showing the patient’s harassment was an uncontrollable by-product of his illnesses. See id. In any event, the summary judgment evidence shows Mr. Patino did suffer from emotional and behavioral problems, including schizophrenia and delusions, for which he received mental health treatment.
*5 Plaintiffs assert, unlike Mr. Johnson, the plaintiff in Cain was offered a reassignment. While this is true, it does not appear to be a fact critical to the Court’s determination in Cain. As discussed in the Memorandum and Recommendation, the important facts of the cases are more similar than different. Like Cain, the harassment of Mr. Johnson was repeated and offensive. Like the plaintiff in Cain, Mr. Johnson was not physically threatened in any way. In both cases, the offender was an elderly, impaired individual in need of personal care who could not be held accountable for his actions. If, as the Cain Court seems to presume, he cannot be controlled, the nursing home should not be held liable for failing to try to control him.

condition, or privilege of employment. Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir.2003); see also Septimus v. University of Houston, 399 F.3d 601, 611 (5th Cir.2005). They argue Mr. Johnson’s employment was affected because he was ultimately terminated based upon a “false” allegation by Mr. Patino. Whether Nexion correctly believed Mr. Patino’s allegation of patient abuse, which resulted in the termination of Mr. Johnson’s employment, is a separate issue from Mr. Patino’s racial harassment. It does not follow, as plaintiffs argue, Mr. Patino’s harassment led to the termination of Mr. Johnson’s employment.1 While asserting that the harassment was embarrassing, Mr. Johnson does not allege the harassment affected a term, condition or privilege of his employment in any way besides termination.

1

As discussed in the Memorandum and

Recommendation, Nexion believed Mr. Patino because

another employee contradicted Mr. Johnson’s statement

that he had not gone into Mr. Patino’s room on the day

in question.

Plaintiffs state Cain should not be read to mean a third-party hostile work environment claim cannot exist simply because the offender is an impaired patient in a nursing facility. This, however, does appear to be the holding of Cain, at least when the harassment is verbal only and does not impact the physical safety or integrity of the employee. As explained in the Memorandum and Recommendation, the cases cited by plaintiffs are distinguishable on this basis. The Cain opinion seems to suggest that persons who work in these types of environments do so knowing their patients are impaired and will at times speak inappropriately.
Aside from the decision in Cain, plaintiffs fail to establish an essential element of a hostile work environment claim. They are required to prove the harassment affected a term,

IT IS THEREFORE ORDERED that the Memorandum and Recommendation (docket no. 37) of the United States Magistrate Judge is ACCEPTED pursuant to 28 U.S.C. § 636(b)(1) such that defendant’s motion for summary judgment (docket no. 27) is GRANTED and plaintiff’s claims against defendant are dismissed.
IT IS FURTHER ORDERED that the above-styled and numbered cause is DISMISSED. Motions pending with the Court, if any, are dismissed as moot.
It is so ORDERED.
	  

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 CM/ECF LIVE - U.S. District Court:txwd - Docket Report

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U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:04-cv-00872-FB

Equal Employment v. Nexion Health, et al Assigned to: Honorable Fred Biery Demand: $0 Case in other court: 5CCA, 05-51770
5CCA, 05-51770 Fifth Circuit Court of Appeals, 05-51770 USCA, :05- -51770 Cause: 42:1983 Civil Rights Act

Date Filed: 09/28/2004 Date Terminated: 09/28/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Edward Juarez U.S. EEOC San Antonio District Office 5410 Fredericksburg Road Suite 200 San Antonio, TX 78229-3555 (210) 281-7613 Fax: (210) 281-7669 Email: eduardo.juarez@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith G. Taylor U.S. EEOC San Antonio District Office 5410 Fredricksburg Rd. Suite 200 San Antonio, TX 78229-3555 (210) 281-7637 Fax: 210/281-7669 Email: judith.taylor@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. Harwin Equal Employment Opportunity Commission San Antonio District Office 5410 Fredericksburg Road Suite 200 San Antonio, TX 78229-3555 (210) 281-7643 Fax: (210) 281-7669

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CM/ECF LIVE - U.S. District Court:txwd - Docket Report
V. Defendant Nexion Health at Broadway, Inc. doing business as Broadway Lodge
Intervenor Terrance Darrell Johnson
Intervenor Defendant Nexion Health at Broadway, Inc. doing business as Broadway Lodge Intervenor Terrance Darrell Johnson
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Email: robert.harwin@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Terrerce B. Robinson Neel & Hooper 1700 West Loop South Suite 1400 Houston, TX 77027 (713) 629-1800 Fax: (713) 629-1812 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew R. Pearson Gravely & Pearson, L.L.P. 425 Soledad Suite 600 San Antonio, TX 78205 (210)472-1111 Fax: 210/472-1110 Email: mpearson@gplawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Terrerce B. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Marc E. Gravely Gravely & Pearson, LLP Riverview Towers 111 Soledad Suite 300 San Antonio, TX 78205 (210) 472-1111 Fax: 210/472-1110 Email: mgravely@gplawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew R. Pearson
6/8/2007 11:40 AM

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/28/2004 09/28/2004 09/28/2004 09/28/2004 09/28/2004 10/26/2004 11/23/2004 11/23/2004 11/29/2004 11/30/2004 11/30/2004
12/07/2004 12/07/2004 12/07/2004 12/15/2004 12/15/2004 12/27/2004 12/27/2004

#

Docket Text

Case assigned to Honorable Fred Biery (ep) (Entered: 09/28/2004)
If ordered by the court, all referrals will be assigned to Magistrate Judge Primomo (ep) (Entered: 09/28/2004)
1 Complaint filed. (Pages: 5) (ep) (Entered: 09/29/2004)
2 Demand for jury trial by Equal Employment (ep) (Entered: 09/29/2004)
summons not issued (ep) (Entered: 09/29/2004)
3 Waiver of Service by Nexion Health ; Notice and Request Mailed on 10/18/04 (lp) (Entered: 10/27/2004)
4 Motion by Nexion Health for Terrence B. Robinson to appear pro hac vice (lp) (Entered: 11/23/2004)
5 Answer by Nexion Health (lp) (Entered: 11/23/2004)
Pro hac vice fee paid by Terrerce B. Robinson with Amount: 25.00 Receipt # 192460 (ct) (Entered: 11/29/2004)
6 Order granting motion for Terrence B. Robinson to appear pro hac vice [4-1] signed by Honorable Fred Biery (lp) (Entered: 12/01/2004)
7 Order that the plaintiff shall submit a proposed scheduling order to the Court within sixty (60) days after the appearance of any defendant. Signed by Honorable Fred Biery (lp) (Entered: 12/01/2004)
8 Motion by Terrance Darrell Johnson to intervene (lp) (Entered: 12/08/2004)
Received complaint in intervention by Terrance Johnson (lp) (Entered: 12/08/2004)
9 Non-consent to proceed before a U.S. Magistrate by Equal Employment (lp) (Entered: 12/08/2004)
10 Order granting motion to intervene [8-1] signed by Honorable Fred Biery (lp) (Entered: 12/16/2004)
11 Intervenor's complaint by Terrance Darrell Johnson against Nexion Health (Pages: 5) (lp) (Entered: 12/16/2004)
12 Answer by Nexion Health to intervenor complaint [11-1] (rg) (Entered: 12/28/2004)
13 Recommendations for scheduling order by Equal Employment, Nexion Health, Terrance Darrell Johnson (rg) (Entered: 12/28/2004)

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12/27/2004
01/03/2005 01/03/2005 01/14/2005
01/18/2005 02/17/2005 02/23/2005 04/01/2005 04/01/2005 05/16/2005 05/23/2005 06/28/2005 06/30/2005 07/19/2005 08/16/2005 08/18/2005 08/19/2005 08/24/2005 08/24/2005 08/26/2005

14 Notice of filing Report of Parties' Rule 26(f) Joint Discovery Case Management Plan by Equal Employment, Nexion Health, Terrance Darrell Johnson (rg) (Entered: 12/28/2004)
15 Order referring case to US MAgistrate Judge John Primomo for pretrial proceedings signed by Honorable Fred Biery (lp) (Entered: 01/04/2005)
Case referred to Honorable John W. Primomo (lp) (Entered: 01/04/2005)
16 Scheduling order setting Joining of parties, amending of pleadings on 3/24/05 Deadline for filing of all motions 8/15/05 Discovery cutoff 6/30/05 ; Alternate Dispute Resolution Report due by 2/22/05 , termed motions signed by Honorable John W. Primomo (lp) (Entered: 04/04/2005)
17 Notice of filing initial disclosures by Nexion Health (lp) (Entered: 01/19/2005)
18 Alternate Dispute Resolution Report filed by Equal Employment, Party(s) agree to Alternate Dispute Resolution (lp) (Entered: 02/18/2005)
19 Alternate Dispute Resolution Report filed by Nexion Health, Party(s) agree to Alternate Dispute Resolution (lp) (Entered: 02/24/2005)
20 Designation of expert witness filed by Equal Employment (lp) (Entered: 04/04/2005)
21 Designation of expert witness filed by Terrance Darrell Johnson (lp) (Entered: 04/04/2005)
22 Combined Witness, Exhibit and Expert List by Nexion Health (rg1) (Entered: 05/17/2005)
23 Pretrial disclosures filed by Terrance Darrell Johnson (tm) (Entered: 05/24/2005)
24 Agreed Motion by Equal Employment, Nexion Health, Terrance Darrell Johnson for protective order (ct) (Entered: 06/29/2005)
25 Order granting motion for protective order [24-1] signed by Honorable John W. Primomo (rg) (Entered: 07/01/2005)
26 Combined Witness, Exhibit and Expert List by Nexion Health (tm) (Entered: 07/20/2005)
27 Motion by Nexion Health for summary judgment (ct) (Entered: 08/17/2005)
28 Motion by Equal Employment to strike defendant's motion for summary judgment (ct) (Entered: 08/19/2005)
29 Motion by Nexion Health for leave to file motion for summary judgment (tm) (Entered: 08/22/2005)
30 Order granting motion for leave to file motion for summary judgment [29-1] signed by Honorable John W. Primomo (tm) (Entered: 08/25/2005)
31 Order denying motion to strike defendant's motion for summary judgment [28-1] signed by Honorable John W. (tm) (Entered: 08/25/2005)
32 Response by Nexion Health motion to strike defendant's motion for summary judgment [28-1] (ct) (Entered: 08/29/2005)

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08/26/2005
09/01/2005 09/06/2005
09/06/2005 09/08/2005
09/08/2005 09/08/2005 09/13/2005 09/13/2005 09/14/2005 09/19/2005
09/28/2005
09/28/2005
09/28/2005 09/30/2005
11/23/2005 11/28/2005

33 Opposed Motion by Equal Employment, Terrance Darrell Johnson for leave to file joint response to defendant's motion for summary judgment out of page limit (joint response receive stamped) (ct) Modified on 08/29/2005 (Entered: 08/29/2005)
34 Reply by Nexion Health to response to motion for summary judgment [27-1] (ct) (Entered: 09/02/2005)
35 Order granting motion for leave to file joint response to defendant's motion for summary judgment out of page limit [33-1] signed by Honorable John W. Primomo (tm) (Entered: 09/07/2005)
36 Response by Equal Employment in opposition to motion for summary judgment [27-1] (tm) (Entered: 09/07/2005)
37 Report and recommendation of Judge Primomo recommending that Nexion's motion for summary judgment [27-1] be GRANTED. (Sent copies by certified mail or faxed if authorization is on file) (tm) (Entered: 09/09/2005)
38 Order returning case to the District Court for all purposes signed by Honorable John W. Primomo (tm) (Entered: 09/09/2005)
CASE NO LONGER REFERRED TO Honorable John W. Primomo (tm) (Entered: 09/09/2005)
Acknowledgment receipt of Equal Employment magistrate report and recommendations (tm) (Entered: 09/14/2005)
Acknowledgment receipt of Equal Employment magistrate report and recommendations (tm) (Entered: 09/14/2005)
Acknowledgment receipt of Nexion Health magistrate report and recommendations (tm) (Entered: 09/19/2005)
39 Objections to Magistrate's proposed findings of fact and recommendations regarding summary judgment [37-1] by Equal Employment (tm) (Entered: 09/20/2005)
40 Order ACCEPTING memorandum and recommendation of the United States Magistrate Judge: granting motion for summary judgment [27-1] signed by Honorable Fred Biery (tm) (Entered: 09/29/2005)
41 Judgment DISMISSING case pursuant to Court granting defendant's motion for summary judgment signed by Honorable Fred Biery (Pages: 1) (tm) (Entered: 09/29/2005)
Case closed (tm) (Entered: 09/29/2005)
42 Response by Nexion Health to Plaintiffs' objections to Magistrate's proposed findings and recommendation regarding summary judgment [39-1] (tm) (Entered: 10/03/2005)
43 Notice of appeal by Equal Employment (lp) (Entered: 11/28/2005)
45 Notice of appeal by Terrance Darrell Johnson (lp) (Entered: 11/29/2005)

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11/29/2005 01/17/2006 02/03/2006 04/20/2006 04/26/2006 12/12/2006
12/12/2006

Notice of appeal and certified copy of docket to USCA: appeal [45-1] (lp) (Entered: 11/29/2005)
USCA appeal fees paid for appeal [45-1] : Appeal Fee: $ 255.00 Receipt # 199046 (lp) (Entered: 01/19/2006)
Return of appeal information sheet received. appeal [45-1] USCA NUMBER: 05-51770 (lp) (Entered: 02/03/2006)
Certified and transmitted record on appeal to Terreree B. Robinson - appeal [45-1] (4) Volumes of records (bn) (Entered: 04/26/2006)
46 Acknowledgement from Terrerce B. Robinson - receipt appeal record [0-0] (bn) (Entered: 04/26/2006)
47 Certified copy of USCA JUDGMENT/MANDATE Affirming 45 Notice of Appeal filed by Terrance Darrell Johnson,, 43 Notice of Appeal filed by Equal Employment Opportunity Commission, (bn, ) (Entered: 12/12/2006)
48 Appeal Record Returned from USCA: 45 Notice of Appeal, 43 Notice of Appeal (bn, ) (Entered: 12/12/2006)

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 E.E.O.C. v. Nexion Health at Broadway, Inc., 199 Fed.Appx. 351 (2006)

199 Fed.Appx. 351 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Fifth Circuit Rules 28.7, 47.5.3, 47.5.4. (Find CTA5 Rule 28 and Find CTA5
Rule 47) United States Court of Appeals,
Fifth Circuit.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and
Terrance Dareell Johnson, Intervenor Plaintiff-Appellant, v.
NEXION HEALTH AT BROADWAY, INC., Doing Business as Broadway Lodge, Intervenor Defendant-Appellee.
No. 05-51770 | Summary Calendar. | Sept. 1, 2006.
Synopsis Background: Equal Employment Opportunity Commission (EEOC) sued an employer, claiming that a former employee was subjected to a racially hostile work environment in violation of Title VII. The United States District Court for the Western District of Texas, 2005 WL 3337325, granted summary judgment for employer, and the EEOC appealed.
Holding: The Court of Appeals, Jerry E. Smith, Circuit Judge, held that racial slurs directed against the employee by one of the nursing home residents he cared for did not create an objectively hostile or abusive work environment.
Affirmed.
Attorneys and Law Firms
*351 Julie Loraine Gantz, Robert B. Harwin, Judith Georgann Taylor, San Antonio, TX, for Plaintiff-Appellant.
Terrence Bouvier Robinson, Neel & Hooper, Houston, TX, for Defendant-Appellee.
Appeal from the United States District Court for the

Western District of Texas, No. 5:04-CV-872. Before SMITH, WIENER, and OWEN, Circuit Judges. Opinion JERRY E. SMITH, Circuit Judge:*

*

Pursuant to 5th Cir. R. 47.5, the court has determined

that this opinion should not be published and is not

precedent except under the limited circumstances set

forth in 5th Cir. R. 47.5.4.

The Equal Employment Opportunity Commission (“EEOC”) appeals the dismissal on summary judgment of its claim that Terrance Johnson,1 a former employee *352 of Nexion Health at Broadway, Inc. (“Nexion”), was subjected to a racially hostile work environment in violation of title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. We affirm.

1

Johnson intervened in this appeal and has adopted the

EEOC’s briefs in their entirety.

I.
Nexion operates a nursing home in San Antonio, Texas, that cares primarily for elderly persons with mental conditions such as dementia, schizophrenia, and Alzheimer’s disease. Nexion employed Johnson as a certified nurse’s assistant caring for the residents’ daily needs. Seventy-year-old Pete Patino, one of the residents Johnson cared for, began directing vehement racial slurs against Johnson, who is black, in early 2003. Patino, who is Hispanic, also made many disparaging racial remarks about whites and Hispanics during the same time period. He is a schizophrenic and has had a history of mental illness since age thirteen.
Patino continued to make offensive racial comments against Johnson, including frequent use of the word “nigger,” approximately three to four times a week over the next few months. Johnson reported this verbal abuse to his superiors on many occasions, but they took no action. Patino alleged that Johnson threatened him physically. Nexion fired Johnson for the alleged abuse and for lying during an internal investigation into the abuse allegations.
The EEOC sued Nexion, and Johnson intervened as a plaintiff. The suit alleged that Nexion forced Johnson to
1

E.E.O.C. v. Nexion Health at Broadway, Inc., 199 Fed.Appx. 351 (2006)

work in a racially hostile work environment in violation of 42 U.S.C. § 2000e et seq. The district court granted summary judgment to Nexion and dismissed the case. This appeal follows.

II.
A.
We review a summary judgment de novo, applying the same standard as did the district court. Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002). Summary judgment is proper if the materials before the court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See FED.R.CIV.P. 56(c).

B.
To prevail on a title VII hostile work environment claim,2 a plaintiff must prove that (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment of which he complained was based on race; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take remedial action. Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir.2003). Johnson’s claim satisfies the first three requirements because he is black and was subjected to unwelcome harassment from Patino on that basis.

2

Hostile work environment claims based on racial

discrimination are reviewed under the same standard as

are those based on sexual discrimination. Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 116 n. 10,

122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

C.
We must determine whether the racial slurs directed against Johnson by Patino qualify as actionable harassment under the fourth part of the test. For harassment to affect a term, condition, or privilege of employment, it must be subjectively and objectively abusive. *353 Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th Cir.2004) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d

295 (1993)). The harassment Johnson suffered was subjectively abusive to him, so we turn to whether that harassment was also objectively abusive.3

3

Whether Nexion responded appropriately to Johnson’s

complaints is immaterial unless the harassment Johnson

absorbed from Patino is legally actionable. Because

Patino’s comments did not affect a term, condition, or

privilege of Johnson’s employment, we do not consider

Nexion’s response to the situation. The fact that

Johnson was fired after Patino raised an allegation of

abuse against him is likewise irrelevant to whether, as a

legal matter, Patino’s comments created a hostile

workplace environment for Johnson.

Whether an environment is objectively hostile or abusive is determined by considering the totality of the circumstances. Harris, 510 U.S. at 23, 114 S.Ct. 367. Although no single factor is required, courts look to the frequency and severity of the discriminatory conduct, whether it is physically threatening or humiliating as opposed to a mere offensive utterance, whether it unreasonably interferes with an employee’s work performance, and whether the complained-of conduct undermines the plaintiff’s workplace competence. Hockman, 407 F.3d at 325-26.
The district court relied primarily on Cain v. Blackwell, 246 F.3d 758, 760-61 (5th Cir.2001). There, Cain, who provided home health services to the elderly, sued her employer, alleging a hostile work environment created by sexual advances and racial slurs from a patient who suffered from Parkinson’s and Alzheimer’s. We held that, given the unique circumstances of Cain’s employment, the abuse she suffered was insufficient to establish actionable harassment under title VII. We explained:
The home health care industry was created to assist individuals who lack the ability to care for themselves. Many of these individuals become dependent on home health care as a direct result of debilitating diseases such as Alzheimer’s and Parkinson’s. As an Advanced employee, Cain’s daily routine included dealing with the victims of those diseases and their particular failings. In this context, Marcus’s improper requests and tasteless remarks can not form the basis of a justiciable claim for sexual harassment.
Id. at 760.

2

E.E.O.C. v. Nexion Health at Broadway, Inc., 199 Fed.Appx. 351 (2006)

Cain does not establish a bright-line rule that employees who care for disabled, elderly patients can never succeed on a title VII claim. The specific circumstances of each harassment claim must be judged to determine whether a reasonable person would find the work environment hostile or abusive. The EEOC correctly points to factual distinctions between Cain and the case before us now. Resolution of Johnson’s case requires an individualized inquiry into the circumstances of the harassment, and it would therefore be error to rely on Cain alone in deciding this case. That said, we find the Cain court’s discussion of the unique circumstances involved in caring for mentally diseased elderly patients to be particularly persuasive, and our reasoning in Cain guides our decision here.
We look now to the factors that are often used in determining whether a workplace environment is objectively hostile or abusive. As to the severity of the conduct, Patino’s comments were highly discriminatory. As to their frequency, Johnson allegedly heard the comments about three to four times a week over a number of months.
Although these were more than isolated instances of harassment, they were not so frequent as to pervade the work experience of a reasonable nursing home employee, especially considering their source. *354 Patino’s harassment was not physically threatening or humiliating; it consisted only of offensive utterances, although those utterances were quite offensive.
These circumstances alone cannot support a hostile work environment claim absent some objectively detrimental

impact on Johnson’s work performance. The EEOC’s claim fails, because the harassment Johnson suffered did not objectively interfere with his work performance or undermine his workplace competence. Johnson’s job required him to deal with the tragic failings of elderly people whose minds have essentially failed. Absorbing occasional verbal abuse from such patients was not merely an inconvenience associated with his job; it was an important part of the job itself.
This unique aspect of Johnson’s line of employment is a vital consideration. He worked in a place where most of the people around him were often unable to control what they said or did. It is objectively unreasonable for an employee in such a workplace to perceive a racially hostile work environment based solely on statements made by those who are mentally impaired.
Because Johnson’s work environment was not objectively hostile or abusive given the totality of the circumstances, it cannot be said that Patino’s comments affected a condition, term, or privilege of Johnson’s employment. Therefore, no rational trier of fact could have held Nexion liable for providing Johnson with a hostile work environment. The summary judgment is AFFIRMED.
Parallel Citations
2006 WL 2528432 (C.A.5 (Tex.)), 99 Fair Empl.Prac.Cas. (BNA) 119
	  

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