When Ms B was hired to work as a nurse in a surgical center, she had been out of school for a short time and the surgical center was the perfect place to gain experience and grow. The surgical center was under the direction of Dr K, who was a contract employee. He had 2 separate contracts with the surgical center: 1) to provide anesthesia services and 2) to serve as the surgical center’s medical director.

Dr K took a great interest in the new employee, as he did with many of the younger nurses — often joking around with her, sometimes inappropriately. For a time, Ms B tried to overlook this behavior, but the doctor’s actions increasingly made her feel uncomfortable. He shared with her his previous sexual conquests and how he enjoyed being the dominant man with a submissive woman.

He insinuated that she should engage in a submissive relationship with him and that she should get a tattoo signifying his “ownership” of her. He would write a “sex word of the week” on Ms B’s calendar. He also passed around an unflattering picture of Ms B on her hands and knees, while making inappropriate comments.

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The behavior was upsetting and confusing to Ms B, especially because Dr K was sometimes kind and helpful and acted appropriately. Then there were instances where he would hug her against her will, pull her hair, push her into a corner, or try to kiss her. The surgical center had a mechanism in place for making complaints, both anonymous and formal, but Ms B was afraid that reporting Dr K would have negative consequences for her career.

After working at the surgical center for more than 2 years, Ms B finally filed an anonymous complaint against Dr K. Afterward, his behavior improved for a few months, but soon he was back to making inappropriate remarks to Ms B.

Ms B eventually filed an official complaint well over 3 years after the harassment began. The surgical center’s management conducted an investigation and its medical executive committee met 2 months later. At that meeting, the committee terminated the medical director services contract with Dr K and requested that he self-report to a physician health program and take an 8-week leave of absence. The committee did not cancel Dr K’s anesthesia services contract, however.

Ms B took on additional responsibilities at the surgical center as the safety officer after Dr. K left. Her working conditions improved until Dr K returned 2 months later to resume providing anesthesia services. Although Dr K was no longer harassing her, Ms B felt that he was a threat to her safety and her nursing license. She worked for another 10 months but ultimately decided that she had to resign.

After her resignation, she spoke to a plaintiff’s attorney who suggested that she sue Dr K for battery and emotional distress and that she sue the surgical center for a hostile work environment and constructive discharge (essentially forcing her to leave the job by making it so intolerable).

Ms B sued both the doctor and the surgical center. Prior to the trial, the court dismissed her constructive discharge claim against the surgical center. The case went to a jury trial. The jury found the surgical center liable for the hostile work environment (as evidenced by other nurses who worked there) and Dr K liable for battery and emotional distress. The jury awarded Ms B compensatory and punitive damages.

After the trial, Dr K asked for a whole new trial, which the court denied. Then he appealed the emotional distress award. Ms B renewed her claim for constructive discharge against the surgical center.

The appeals court first addressed Ms B’s constructive discharge claim and noted that such claims are appropriate when an employer discriminates against an employee to the point that the working conditions become so “intolerable that a reasonable person in the employee’s position would have felt compelled to resign.”

The court noted that once Ms B made a nonanonymous complaint, it was acted on by management and that Ms B’s requests to never be alone with Dr K had been respected. The court noted that the criterion for constructive discharge is that the conditions are “intolerable,” which is a higher criterion than a hostile work environment. The appeals court concluded that “the facts here do not rise to the level of a sufficiently intolerable work environment to constitute constructive discharge.” The court also noted that Ms B had worked at the surgical center for years before filing a complaint, despite being aware of that being an option.

The court looked at the emotional distress claim that Dr K was challenging and noted there are 3 elements required: “that the defendant’s conduct must be 1) intentional/reckless, 2) extreme and outrageous, and 3) cause emotional distress so severe that no reasonable person could be expected to endure it.” The court noted that previous courts have generally required something more than the plaintiff’s testimony about feeling upset, uncomfortable, or afraid — usually, an outward manifestation of distress is required.

In this case, Ms B did not need medical attention and did not experience weight fluctuation or sleep deprivation, the court pointed out. It concluded that while Ms. B was “subjected to repugnant conduct, she is not able to demonstrate unendurable and severe emotional distress due to that conduct.”

Protecting Yourself

If you are being subjected to harassment at work there are protections you can take but only if there is a record of you complaining about the harassment. It is fair to give your employer a chance to react and rectify the situation, when possible.

When Ms B filed a formal complaint, her employer launched an investigation and took at least some action against Dr K. He was stripped of the medical director contract and made to attend a recovery program. He could not return to work for 2 months, and once he did, management agreed to Ms B’s request that she never be left alone with him.

If you complain about harassment and your employer doesn’t act to protect you and things become so intolerable that you have no viable choice but to leave the job, then there is the potential for a constructive discharge lawsuit. But if you don’t alert your employer to the issue, they cannot be held liable for not acting on it.

If you are subject to harassment, take notes and keep documentation about when, where, and how the harassment happened and use the proper channels to report the abuse. Also, document any treatment you have needed as a result of the harassment, such as psychopharmaceutical therapy and counseling. ■

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.