Outbursts Did Not Establish Sexual Harassment

​A hospital technologist did not establish sexual harassment based on angry outbursts against her by a male doctor, the 8th U.S. Circuit Court of Appeals recently ruled.

The plaintiff was a staff radiological technologist for Baptist Health at its North Little Rock, Ark., location. She regularly worked in the catheterization laboratory with doctors from Arkansas Cardiology PA, who provided interventional cardiology services for Baptist Health. She worked with two of its doctors, among others.

In March 2019, the plaintiff began documenting incidents between herself and one of the two doctors. During the period from March through November 2019 she claimed that the doctor:

• Was angry with her when an X-ray tube froze up.
• Ignored her statement to him that a patient's family was not present and asked a male co-worker about the patient's family instead.
• Told her not to make fun of him when she made a comment to him.
• Spoke to her in an accusatory tone when he asked whether she had answered his phone during a procedure.
• Looked frustrated with her for taking too long to prepare a patient and made derogatory statements to her about prepping a patient.
• During a procedure, threw a used syringe past her onto a patient's groin, screamed at her and threatened to report her.

The plaintiff also claimed that during one of the incidents, a male witness stated that he wished the doctor would not treat the women here differently than he treats the men. The plaintiff admitted that the doctor never made any sexual comments to her, but she believed that he treated her differently than the men with whom he worked.

In August 2019, the plaintiff reported these incidents to Baptist Health on its hotline. Later that month, the plaintiff filed a complaint with the Equal Employment Opportunity Commission, alleging discrimination by the doctor. After reporting these incidents, Baptist Health had the plaintiff's supervisor and the Perioperative Services Director meet with her. They created a safety plan under which the plaintiff would call them if she felt unsafe working with the doctor and one of them would step in to cover for her.

The plaintiff subsequently used the safety plan against the other doctor. She reported him to Baptist Health, claiming that she thought he was intoxicated during a procedure. He was required to take a breathalyzer test to prove that the allegation was false. The doctor was furious and told Baptist Health that he would never work with the plaintiff again. That day, the plaintiff was placed on paid administrative leave until April 2020.

In March 2020, Baptist Health offered the plaintiff the option to return to work and transfer to Baptist Health Little Rock or Baptist Health Conway, or to remain at North Little Rock. Her duties, hours and pay would remain the same. The plaintiff refused the offer because she did not want to work with the first doctor again, even though he mainly worked at the North Little Rock location. They plaintiff admitted that Baptist Health offered to transfer her to another department but that she did not think she should have to change departments to avoid working with the doctor.

Sex Discrimination Lawsuit

The plaintiff sued Baptist Health and the first doctor for sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Arkansas Civil Rights Act, for constructive discharge and negligent retention under Arkansas state law, and for conspiracy to deprive her of equal protection under 42 U.S.C. Section 1985. The doctor was dismissed as a defendant, and Baptist Health moved for summary judgment, which the district court granted. The plaintiff appealed to the 8th Circuit.

On appeal, the 8th Circuit dismissed the plaintiff's constructive discharge claim, noting that Baptist Health had given her options with regard to her return to work. The 8th Circuit then considered whether the plaintiff had established sexual harassment.

Although the plaintiff claimed that a male co-worker once commented on how the doctor treated women worse than men, her allegation was inadmissible hearsay, and the male co-worker did not substantiate her claim in his deposition. The court found that no reasonable jury could conclude that the doctor's actions toward her were based on her sex.

As a result, the 8th Circuit upheld the dismissal of the plaintiff's claims.

Bell v. Baptist Health, 8th Cir., No. 22–2057 (Feb. 28, 2023).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.