Improper notice dooms sexual harassment claim

ATLANTA—A nurse who complained to her supervisor about a doctor's alleged sexual harassment, but asked the supervisor not to report it and to keep it confidential, did not give her employer proper notice of the harassment as a matter of law, a federal appeals court has ruled.

The July 6 decision by the 11th U.S. Circuit Court of Appeals in Atlanta in Nurse "BE" vs. Columbia Palms West Hospital Ltd. Partnership reversed a $10,000 jury award against Palms West on a sexually hostile work environment claim by Bobbie Eicke O'Brien, a former nurse at the Loxahatchee, Fla., hospital.

According to the decision, pediatric neurosurgeon Dr. Michael Chaparro, who was under contract but not an employee of the hospital, began calling Ms. O'Brien's cell phone late at night, asking her to meet him for a drink or to go out to dinner. Ms. O'Brien said she always indicated she was not interested.

After receiving several calls, Ms. O'Brien asked supervisor Cindy Stowers to remove her phone number from the staff directory, but also asked that the matter not be reported to the administration for fear of retaliation. Ms. O'Brien refused to identify the caller until Ms. Stowers promised the matter would not be reported.

Ms. O'Brien described the calls as "harassing," which Ms. Stowers took to mean "annoying," the ruling says.

Ms. O'Brien's name was removed from the staff directory, she changed her cell phone number, and the calls stopped. However, there were subsequent incidents, including one in which the doctor followed the nurse into a closet and made sexual advances. Ms. O'Brien then complained to supervisors, who forwarded her complaint to the human resources director at the hospital, which has an anti-sexual harassment policy, and the HR director investigated.

The doctor claimed Ms. O'Brien had also called him and the closet incident was the first time she rebuffed his advances. In her report, the HR director indicated that the doctor's behavior was inappropriate but no action was taken against him, says the decision. Ms. O'Brien subsequently resigned and filed suit against both the hospital and the doctor.

A lower court jury sided with Ms. O'Brien on the hostile work environment claim, but it found no liability on her retaliation claim.

The suit against Dr. Chaparro, in which she accused him of assault, battery and intentional infliction of emotional distress, was settled for an undisclosed amount.

Ms. O'Brien's conversation with her supervisor did not put the hospital on notice as a matter of law, the three-judge panel ruled in its unanimous decision. "At best, the phone calls, as described by O'Brien, amounted to co-worker congeniality. At worst, they described a persistent but non-threatening suitor, which still does not amount to harassment."

"The substance of O'Brien's complaint, coupled with the fact that she requested Stowers not to report it, was insufficient to place Palms West on notice of sexual harassment," the appeals court panel ruled.

Once the hospital was put on notice of the doctor's behavior, it took "prompt and corrective action," the court said.

Brian Ashe, a defense attorney with Seyfarth Shaw L.L.P. in San Francisco, called the appeals court ruling "extraordinary."

"I'm not sure what more an employee would need to make a complaint," Mr. Ashe said. "I think this is a singular opinion."

"They essentially blamed her for wanting to not be retaliated against" in asking her supervisor to keep her complaint confidential. "In every other case I'm familiar with, that's enough to put the employer on notice, and just because the employee says they don't want to proceed, the employer has a duty" to proceed with an investigation, said Mr. Ashe.

However, Richard D. Tuschman, a defense attorney with Epstein Becker & Green P.C. in Miami, said Ms. O'Brien "did not make a specific complaint of sexual harassment. She merely described the phone calls as harassing, which the supervisor took to mean annoying, and that's not sufficient to put the employer on notice of an illegal activity. Basic harassing behavior, in a generic sense, is not illegal."

Furthermore, Ms. O'Brien premised her complaint on the supervisor's promise of confidentiality. "An employee can't have it both ways," said Mr. Tuschman. "She can't insist upon confidentiality and then later complain that her employer failed to take prompt remedial action."

Nurse "BE" vs. Columbia Palms West Hospital Ltd. Partnership, a foreign limited partnership, d.b.a. Palms West Hospital, defendant-appellant, United States Court of Appeals for the Eleventh Circuit, No. 06-12159