Anderson Law Offices

Seventh Circuit Rejects Hospital's Claim that it had no Liability for

Alleged Harassment by Physician

No Ability to Control Harasser is Irrelevant

11/18/05

In Dunn v. Washington County Hospital, just decided, a majority of a panel in

the federal court of appeals in Chicago threw out a nurse's retaliation case, but

also disagreed with a hospital that employed her over its liability

for the acts of a doctor who merely had staff privileges. The hospital alleged it had no legal exposure for the acts of a non-employee. Judge Easterbrook said otherwise:

"...[I]t makes no difference whether the person whose acts are complained of is an

employee, an independent contractor, or for that matter a customer."

The court's majority, with a strong dissent by Judge Rovner, threw out Dunn's retaliation

claim, despite evidence that Coy's remarks - even if imputed to the hospital - were

insufficient to make a case for illegal reprisal. He "in a nasty and uncivil tone" had repeatedly

asked Dunn to withdraw her internal claim against him.

"Talk is cheap," the court said, and held that such comments would not have dissuaded a reasonable person from protecting her rights under the law.

Dunn had quit after he allegedly pinned her against a cabinet and tapped her on the cheek with a closed fist. In court she had alleged retaliatory discharge. The court held that this incident was insufficient under the "intolerable conditions" standard. Furthermore (and moving to Coy's role as a non-employee) the court ruled that the doctor had no authority to fire her anyway.

Hence an employer is generally speaking responsible for the harassment by any person on the premises, but that person's behavior, forcing an employee to quit, is no basis for a "constructive discharge" claim.

Judge Rovner's dissent sharply disagrees with the majority, and drills deeper into the facts than Judge Easterbrook's opinion does. Her exposition of the facts is significantly less supportive of the hospital's case, and makes a strong argument for sending the claim to a jury. She noted that Dunn and other nurses had given statements in an internal investigation the hospital conducted after another nurse, Jamie Jones, complained that Coy was harassing her. The hospital had promised Dunn and others confidentiality, then gave a copy of the report drafted by the hospital's attorney to Coy. "A jury could....decide that the hospital materially altered the terms of Dunn's employment by letting Coy run amok after Dunn cooperated in the investigation of [sic] Jones' complaint," she wrote.