EEOC v. Nexion Hlth Broadway

United States Court of Appeals
Fifth Circuit
F I L E D
September 1, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-51770
Summary Calendar
_______________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
AND
TERRANCE DAREELL JOHNSON,
Intervenor Plaintiff-Appellant,
VERSUS
NEXION HEALTH AT BROADWAY, INC.,
DOING BUSINESS AS BROADWAY LODGE,
Intervenor Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 5:04-CV-872
______________________________

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Before SMITH, WIENER, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
The Equal Employment Opportunity Com-
mission (“EEOC”) appeals the dismissal on
summary judgment of its claim that Terrence
Johnson,1 a former employee 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.
I.
Nexion operates a nursing home in San An-
tonio, Texas, that cares primarily for elderly
persons with mental conditions such as demen-
tia, 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 direct-
ing vehement racial slurs against Johnson, who
is black, in early 2003. Patino, who is His-
panic, 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 threat-
ened him physically. Nexion fired Johnson for
the alleged abuse and for lying during an in-
ternal investigation into the abuse allegations.
The EEOC sued Nexion, and Johnson in-
tervened as a plaintiff. The suit alleged that
Nexion forced Johnson to 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 dis-
missed 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 mov-
ing 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 envi-
ronment 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
* Pursuant to 5th Cir. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5th Cir. R. 47.5.4.
1Johnson intervened in this appeal and has
adopted the EEOC’s briefs in their entirety.
2 Hostile work environment claims based on ra-
cial discrimination are reviewed under the same
standard as are those based on sexual discrimina-
tion. Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116 n.10 (2002).

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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.
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, con-
dition, or privilege of employment, it must be
subjectively and objectively abusive. 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 (1993)). The
harassment Johnson suffered was subjectively
abusive to him, so we turn to whether that
harassment was also objectively abusive.3
Whether an environment is objectively hos-
tile or abusive is determined by considering the
totality of the circumstances. Harris, 510 U.S.
at 23. Although no single factor is required,
courts look to the frequency and severity of
the discriminatory conduct, whether it is phys-
ically threatening or humiliating as opposed to
a mere offensive utterance, whether it unrea-
sonably 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 employ-
er, 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 indi-
viduals become dependent on home health
care as a direct result of debilitating dis-
eases 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.
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 envi-
ronment hostile or abusive. The EEOC cor-
rectly 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 harass-
ment, 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 partic-
3 Whether Nexion responded appropriately to
Johnson’s complaints is immaterial unless the har-
assment 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 work-
place environment for Johnson.

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ularly 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 en-
vironment is objectively hostile or abusive. As
to the severity of the conduct, Patino’s com-
ments were highly discriminatory. As to their
frequency, Johnson allegedly heard the com-
ments about three to four times a week over a
number of months.
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
occasionalverbal abuse fromsuch 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-
tally 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.

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