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Significant Victory before the EEOC: VA Must Protect Nursing Staff from Sexual Harassment by Patients

by | Jan 29, 2021 | Case Results

January 29th, 2021

On January 28, 2021, the Department of Veterans Affairs adopted the decision of the Administrative Judge ​finding that the VA subjected Gilbert Employment Law, P.C. ​clients, nurses, Kathy Bennett and Josephine Zahn, ​to sexual harassment and failed to take effective corrective action despite being aware of the “egregious” harassment.  Ms. Bennett and Ms. Zahn were part of the nursing staff on the psychiatric unit at the VA Medical Center in Denver. In the Summer of 2014, the unit had a patient in its care that sexually harassed and assaulted the female nurses on a daily basis. When Ms. Bennett, Ms. Zahn, and other nursing staff complained to their supervisors, management’s response was that the staff should expect ​such treatment because of the nature of their jobs and suggested the nurses find new jobs if they refused to tolerate the sexual harassment and assault. When Ms. Bennett and Ms. Zahn attempted to pursue the EEO process to protect their rights, the Agency’s Civil Rights staff erroneously advised them that they could not file EEO complaints because the EEO process didn’t cover harassment by patients.  ​In her decision, the Administrative Judge addressed the Agency’s lack of concern for its female staff and misunderstanding of the law, explaining that “[o]ne of the most glaring failures by the Agency is its complete disregard in developing and implementing a policy that prevents sexual harassment of staff by patients”  and finding that Agency management “failed to recognize that…nursing staff are entitled to a workplace free of harassment and sexual assaults.”

The firm successfully pushed the Agency to move the complaints forward and represented Ms. Bennett and Ms. Zahn throughout the EEOC’s administrative hearing process, including at hearing before an EEOC Administrative Judge. After the hearing, the Administrative Judge found that the Agency was liable for the harassment the complainants suffered and awarded each Client $300,000 in nonpecuniary compensatory damages, plus all out-of-pocket expenses they incurred, which total close to $300,000 between the two. She also awarded over $600,000 in attorneys’ fees to Gilbert Employment Law, P.C., and noted that the total judgment was over $1.5 million. The Agency had the opportunity to appeal the decision to the EEOC’s appellate body but declined to do so, instead adopting the decision in full.

The firm is particularly excited that the Administrative Judge found that the Agency was liable not just for the harassment Ms. Bennett and Ms. Zahn suffered, but also for the harassment of two other nurses who testified at hearing​ as witnesses but who had not filed EEO complaints, and that the Administrative Judge ordered the Agency to implement a policy governing how to respond to harassment by patients. Shannon Leary, AJ Hill, and Gary Gilbert represented Ms. Bennett and Ms. Zahn and are thankful both to have had the opportunity to support these strong women in standing up for themselves and asserting their rights, and to have been part of a case that will have a lasting impact on other employees as well.
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