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Employer May Be Liable for Bawdy Doctor, Despite Reprimand, Offer to Transfer Nurse

Wednesday, January 22, 2014
By Chris Opfer

Jan. 21 --A Texas surgery facility that offered to transfer a nurse who complained about a doctor's alleged offensive conduct and told the physician to apologize and refrain from offending behavior may not have taken sufficient action to be entitled to an affirmative defense on the nurse's sexual harassment claim, a federal district court ruled Jan. 17 (Sanders v. Christus Santa Rosa PASC, 2014 BL 13873, W.D. Tex., No. 5:13-cv-00250, 1/17/14).

Stephanie Sanders's supervisor at Christus Santa Rosa Physicians Ambulatory Surgery Center offered to transfer her to another facility or to a different floor at the same facility after she complained that Dr. Michael Decherd was sexually harassing her, including by making advances toward her and showing her a video of a woman having sex with a horse. Although Christus Santa Rosa claimed that the supervisor also reprimanded Decherd and instructed him to stay away from Sanders, Decherd later said he was told to simply apologize for making her uncomfortable.

The U.S. District Court for the Western District of Texas denied Christus Santa Rosa's motion for summary judgment on Sanders's claim for sexual harassment under Title VII of the 1964 Civil Rights Act. The court said a material issue of genuine fact remained as to whether Christus Santa Rosa exercised reasonable care to correct and stop the alleged sexual harassment so as to be shielded from liability under the Faragher/Ellerth affirmative defense.

Judge Xavier Rodriguez also found that Sanders raised a triable question as to whether Decherd's alleged conduct was sufficiently severe or pervasive to constitute sexual harassment. While previous circuit precedent focused on the number of offensive acts to determine pervasiveness, the judge said a recent decision made clear that quantity isn't the only factor to consider.

Hugging, Drinks, Horse Sex Alleged
Sanders was working as a surgical pre-operation nurse at Christus Santa Rosa's Treeline facility when she said Decherd began harassing her in 2011. She alleged that Decherd “made continued and escalated comments of a sexual nature” to her and also touched her inappropriately.

Among other offensive and unwelcome behavior, Sanders said Decherd followed her into a utility closet and told her she was “sexy.” She also claimed that Decherd often hugged her, invited her out for drinks, used her phone to add him as a friend on Facebook and told her that he'd changed his mind about oral sex after showing her a photo of a man performing oral sex on a woman. Decherd later admitted that he also showed Sanders a video clip of a woman having sex with a horse, according to the court.

Sanders alleged that supervisor Isabelle Herrera knew or should have known about Decherd's behavior because it was pervasive and Herrera personally witnessed some of the alleged incidents. She also said she complained about the behavior to Herrera in November 2011, an allegation that Herrera denied.

Sanders later complained about Decherd's behavior to facility administrator Lynne Pinard April 20, 2012. According to Pinard, she “took action immediately to ensure that Ms. Sanders would have no contact with Dr. Decherd and verbally reprimanded him for unprofessional conduct.”

Decherd characterized the conversation differently, however, saying Pinard approached him about apologizing to Sanders. He said he didn't believe that he'd done anything wrong, but was “happy to apologize for making [Sanders] uncomfortable.” He also said he was instructed by Christus Santa Rosa management “to behave in a manner that would not lead to any complaints.”

Sanders was scheduled to work on a different floor of the Treeline facility the following day and Pinard then gave her the option of continuing to work on that floor--with no contact with Decherd--or transferring to the Stone Oak facility where Sanders previously worked. She took the latter option.

Sanders later sued Decherd and Christus Santa Rosa for sexual harassment under Title VII. She ultimately settled the claims against Decherd.

Question of 'Reasonable Care.'
Denying Christus Santa Rosa's motion for summary judgment, the court said it remained unclear whether the employer had established the Faragher/Ellerth defense by showing that it exercised reasonable care to prevent and promptly correct any sexual harassment and that Sanders failed to take advantage of any preventive or corrective opportunities.

“A genuine issue of material fact exists as to whether the employer exercised reasonable care to correct promptly any sexually-harassing behavior,” Rodriguez wrote.

Despite Pinard's assertions, the court noted that Decherd said he wasn't reprimanded for his behavior, but instead simply told to apologize for making Sanders uncomfortable and refrain from any behavior that might lead to another complaint. Meanwhile, Sanders said she felt that she was forced to transfer to another facility because she wasn't given any assurances that the alleged harassment would stop, that Decherd would be disciplined or that he would be prevented from having any further contact with her.

Conduct May Have Been Severe or Pervasive
The court also held that a fact issue remained as to whether Dechard's alleged behavior was sufficiently severe or pervasive to constitute sexual harassment.

Relying on Fifth Circuit precedent Russell v. University of Texas of the Permian Basin, 234 F. App'x 195, 100 FEP Cases 1736 (5th Cir. 2007) and Hockman v. Westward Communications, LLC, 407 F.3d 317, 103 FEP Cases 1710 (5th Cir. 2004), Rodriguez said “it appears the Court measures the number of offensive acts that take place during a certain period to determine pervasiveness.”

In Russell, the Fifth Circuit found that a female doctor who allegedly rubbed a female colleague's thigh on one occasion, twice said she wanted to move to New York City with her, and also said she wouldn't mind watching a movie with her in bed, in addition to often referring to the colleague as “honey” and “babe” didn't engage in conduct severe or pervasive enough to constitute sexual harassment. Similarly, the appeals court ruled in Hockman that alleged comments about a worker's body, along with single incidents in which the purported harasser slapped the employee on the behind with a newspaper, grabbed or brushed against her breast and attempted to kiss her were not sufficiently severe or pervasive.

Nevertheless, Rodriguez said the Fifth Circuit “recently called into doubt” the Hockman decision in Royal v. CCC&R Tres Arboles, LLC, 736 F.3d 396, 120 FEP Cases 1440 (5th Cir. 2013). In that case, the court concluded that the “sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as [sexual] harassment” .

As a result, the court said Sanders raised a triable sexual harassment claim. “This Court finds that the conduct complained of in this case more resembles Royal in terms of both severity or pervasiveness and Plaintiff has shown a genuine dispute of material fact,” Rodriguez wrote.

Sanders was represented by Lonnie E. Chunn and David G. Harris of Chunn, Price & Harris in San Antonio and Jonathan S. Hill of Ross Law Group in Austin, Texas. Danya W. Blair, Lori W. Hanson and Marc K. Whyte of Beirne, Maynard & Parsons, L.L.P. in San Antonio represented Christus Santa Rosa.

 

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com


Text of the opinion is available at http://www.bloomberglaw.com/public/document/Sanders_v_CHRISTUS_Santa_Rosa_Physicians_Ambulatory_Surgery_Cente.

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