Case Information
*2 Bеfore S MITH , W IENER , and O WEN , his superiors on many occasions, but they took
Circuit Judges. no action. Patino alleged that Johnson threat- ened him physically. Nexion fired Johnson for
ERRY E. S MITH , Circuit Judge: [*] the alleged abuse and for lying during an in- ternal investigation into the abuse allegations.
The Equal Employment Opportunity Com- mission (“EEOC”) appeals the dismissal on The EEOC sued Nexion, and Johnson in- summary judgment of its claim that Terrence tervened as a plaintiff. The suit alleged that Johnson, [1] a former employee of Nexion Health Nexion forced Johnson to work in a racially at Broadway, Inc. (“Nexion”), was subjected hostile work environment in violation of 42 to a racially hostile work еnvironment in U.S.C. § 2000e et seq. The district court violation of title VII of the Civil Rights Act of granted summary judgment to Nexion and dis- 1964, 42 U.S.C. § 2000e et. seq. We affirm. missed the casе. This appeal follows.
I. II.
Nexion operates a nursing home in San An-
A.
tonio, Texas, that cares primarily for elderly
We reviеw a summary judgment
de novo
persons with mental conditions such as demen-
applying the same standard as did the district
tia, schizophrenia, and Alzheimer’s disease.
court.
Terrebonne Parish Sch. Bd. v. Mobil
Nexion employed Johnson as a certified
Oil Corp.
,
panic, also made many disparaging racial
remarks about whites and Hispanics during the B.
same time period. He is a schizophrenic and To prevail on a title VII hostile work envi- has hаd a history of mental illness since age ronment claim, a plaintiff must prove that thirteen. (1) he belongs to a protected group; (2) he
was subjected to unwelcome harassment; (3) Patino continued to make offensive racial the harassment of which he complained was comments against Johnson, including frequent based on race; (4) the harassment affected a use of the word “nigger,” approximately three term, condition, or privilege of employment; to four times a week over the nеxt few and (5) the employer knew or should have months. Johnson reported this verbal abuse to known of the harassment and failed tо take
remedial action.
Frank v. Xerox Corp.
, 347
*3
F.3d 130, 138 (5th Cir. 2003). Johnson’s
The district court relied primarily on claim satisfies the first three requirements
v. Blackwell
,
by sexual advances and racial slurs from a C. patient whо suffered from Parkinson’s and We must determine whether the racial slurs Alzheimer’s. We held that, given the unique directed against Johnson by Patino quаlify as circumstances of Cain’s employment, the actionable harassment under the fourth part of abuse she suffered was insuffiсient to establish the test. For harassment to affect a term, con- actionable harassment under title VII. We dition, or privilegе of employment, it must be explained:
subjectively and objectively abusive. Hockman
v. Westward Commc’ns, LLC
,
Whether an environment is objectively hos- As an Advanced employee, Cain’s daily tile or abusive is determined by considering thе routine included dealing with the victims of totality of the circumstances. Harris , 510 U.S. those diseases and their particular failings. at 23. Although no singlе factor is required, In this context, Marcus’s improper requests courts look to the frequency and severity of and tasteless rеmarks can not form the basis the discriminatory conduct, whether it is phys- of a justiciable claim for sexual harassment. ically threatening or humiliating as opposed to
a mere offensive utterance, whether it unrea- Id. at 760.
sonably interferes with an employee’s work
performance, and whether the complained-of
Cain
does not establish a bright-line rule
conduct undermines the plaintiff's workplace
that employees who care for disabled, elderly
competence.
Hockman
,
The specific circumstances of each harassment claim must be judged to determine whether a reasonable person would find the work envi- Whether Nexion responded аppropriately to ronment hostile or abusive. The EEOC cor- Johnson’s complaints is immaterial unless the har- rectly points tо factual distinctions between assment Johnson absorbed from Patino is legally Cain and the case before us now. Resolution actionable. Because Patino’s comments did not of Johnson’s case requires an individualized affect a term, condition, or privilege of Johnson’s inquiry into the circumstances of the harass- employment, we do not consider Nexion’s response ment, аnd it would therefore be error to rely to the situation. The fact that Johnson was fired on Cain alone in deciding this case. That said, after Patino raised an allegation of abuse against we find the Cain court’s discussion of the him is likewise irrelevant to whether, as a lеgal unique circumstances involved in caring for matter, Patino’s comments created a hostile work- mentally diseased eldеrly patients to be partic- place environment for Johnson. *4 ularly persuasive, and our reasoning in tally impaired.
guides our decision here.
Because Johnson’s work environment was We look now tо the factors that are often not objectively hostile or abusive given the used in determining whether a workplace en- totality of the circumstances, it cannot be said vironment is objectively hostile or abusive. As that Patino’s comments affected a condition, to the severity of the conduct, Patino’s com- term, or privilege of Johnson’s employment. ments were highly discriminаtory. As to their Therefore, no rational trier of fact could have frequency, Johnson allegedly heard the com- held Nexion liable for providing Johnson with ments about three to four times a week over a a hostile work environment. The summary number of mоnths. judgment is AFFIRMED.
Although these were more than isolated in-
stances of harassment, they were not so fre-
quent as to pervade the work experience of a
reasonable nursing home employee, especially
considering their source. Patino’s harassment
was not physically threatening or humiliating;
it consisted only of offensive utterances, al-
though 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 perfor-
mance or undermine his workplace compe-
tence. 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 em-
ployment 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 sole-
ly on statements made by those who are men-
Notes
[*] Pursuant to 5th Cir. R. 47.5, the court has de- termined that this opinion should not be published
[2] Hostile work environment claims based on ra- and is not рrecedent except under the limited cir- cial discrimination are reviewed under the same cumstances set forth in 5th Cir. R. 47.5.4. standard as are those based on sexual discrimina-
[1] Johnson intervened in this appeal and has tion. Nat’l R.R. Passenger Corp. v. Morgan , 536 adopted the EEOC’s briefs in their entirety. U.S. 101, 116 n.10 (2002).