No. 05-51770 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, TERRANCE JOHNSON, Intervenor-Appellant, v. NEXION HEALTH AT BROADWAY, INC., d/b/a BROADWAY LODGE, Defendant-Appellee. ______________________________________________________ On Appeal from the United States District Court for the Western District of Texas, San Antonio Division ______________________________________________________ PETITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING OR REHEARING EN BANC ______________________________________________________ RONALD S. COOPER ANNE NOEL OCCHIALINO General Counsel Attorney EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Acting Associate General Counsel 1801 L St., NW, Rm. 7030 Washington, D.C. 20507 LORRAINE C. DAVIS (202) 663-4724 Assistant General Counsel STATEMENT PURSUANT TO RULE 35(b)(1) Rehearing or rehearing en banc is necessary because the panel's decision conflicts with Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). The panel's decision also conflicts with the following cases of this Court, making consideration by the full Court necessary to secure and maintain uniformity of decisions in this Court: Walker v. Thompson, 214 F.3d 615 (5th Cir. 2000), Wallace v. Texas Tech Univ., 80 F.3d 1042 (5th Cir. 1996), and Vaughan v. Pool Offshore Co., 683 F.2d 922 (5th Cir. 1982). Additionally, this appeal involves a question of exceptional importance: whether, as a matter of law, Title VII excludes from protection employees who have been verbally harassed by mentally impaired patients in a residential home, regardless of the nature of the harassment or the employer's response. Rehearing is also necessary because the panel's answer to this question conflicts with the following decisions from other circuits: Freitag v. Ayers, – F.3d – , Nos. 03-16702, 03-17184, 03-17398, 2006 WL 2614120 (9th Cir. Sept. 13, 2006); Turnball v. Topeka State Hosp., 255 F.3d 1238 (10th Cir. 2001); Crist v. Focus Homes, Inc., 122 F.3d 1107 (8th Cir. 1997); Slayton v. Ohio Dep't of Youth Servs., 206 F.3d 669 (6th Cir. 2000). Fed. R. App. P. 35(b)(1)(A). TABLE OF CONTENTS Page STATEMENT PURSUANT TO RULE 35(b)(1). . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF COURSE OF PROCEEDINGS AND DISPOSITION . . . . . . .1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Rehearing is necessary because the panel's decision conflicts with established Supreme Court law, authority from this Court, and decisions from four other circuits, and because a reasonable jury could find Nexion liable for the racial harassment directed at Johnson.. . . . . .5 A. The panel effectively held that employees who are verbally harassed by mentally impaired patients can never bring a hostile work environment claim, contravening Supreme Court law and the law of this Circuit and conflicting with decisions from four other circuits.. . . . . . . . . . . . . . . . . . . . . . . . .5 B. The panel's decision was erroneous because a reasonable jury could find that the harassment was objectively abusive and Nexion was liable for it.. . . . . . . . . . . . . . . . . . . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF SERVICE ADDENDUM EEOC v. Nexion Health at Broadway, Inc., No. 05-51770 (5th Cir., Sept. 1. 2006), slip opinion TABLE OF AUTHORITIES Cases Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993) 12 Cain v. Blackwell, 246 F.3d 758 (5th Cir. 2001). . . . . . passim Crist v. Focus Homes, Inc., 122 F.3d 1107 (8th Cir. 1997) 9,10,13,14,15 EEOC v. Nexion Health at Broadway, Inc., d/b/a Broadway Lodge, No. 05-51770 (5th Cir. Sept. 1, 2006) . . . . . . . . . . . . . . . . . passim Freitag v. Ayers, -- F.3d – Nos. 03-16702, 03-17184, 03-17398, 2006 WL 2614120 (9th Cir. Sept. 13, 2006) . . . . . . . . . . . . . . 10 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . 3,7,8,14 Hockman v. Westwards Commc'ns, 407 F.3d 317 (5th Cir. 2004). . .3 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) . . . . . .7 Oncale v. Sundowner Offshore Servs., Inc., 477 U.S. 57 (1986) 7,8,9 Slayton v. Ohio Dep't of Youth Servs., 206 F.3d 669 (6th Cir. 2000) 11 Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001) . 12 Turnball v. Topeka State Hosp., 255 F.3d 1238 (10th Cir. 2001) 10,15 Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir. 1982) . . .9 Walker v. Thompson., 214 F.3d 615 (5th Cir. 2000) . . . . . . 12 Wallace v. Texas Tech Univ., 80 F.3d 1042 (5th Cir. 1996) . . 12 TABLE OF AUTHORITIES (con't) Federal Regulations 29 C.F.R. § 1604.11(e) . . . . . . . . . . . . . . . . . . . . .9 STATEMENT OF THE ISSUES 1. Whether the panel's decision – which effectively holds that employees who are verbally harassed by mentally impaired patients are never entitled to Title VII's protection – conflicts with Supreme Court precedent holding that whether a work environment is objectively hostile depends on the totality of the circumstances, authority from this Court, and decisions from four circuits holding that Title VII protects employees from harassment by patients or inmates. 2. Whether the panel erred in concluding that no reasonable jury could find that the harassment of Terrance Johnson was objectively abusive where an elderly and impaired patient called Johnson a "nigger" three to four times a week and directed other racial slurs at him, Johnson's coworkers witnessed the abuse and some laughed, Nexion exacerbated the harassment when Johnson's supervisor referred to him as a "nigger" and made a racially offensive comment when he complained, and Nexion failed to protect Johnson from the harassment although it easily could have assigned him away from his harasser. STATEMENT OF COURSE OF PROCEEDINGS AND DISPOSITION The EEOC alleged that Nexion subjected Terrance Johnson to a racially hostile work environment in violation of Title VII. Slip op. at 2. Johnson intervened. Id. Nexion filed a motion for summary judgment. Id. Relying on Cain v. Blackwell, 246 F.3d 758 (5th Cir. 2001), the district court granted the motion. Id. at 2-3. Without holding oral argument, a panel of this Court issued an unpublished opinion relying on Cain and affirming the judgment. Id. at 2-4. STATEMENT OF FACTS Johnson worked as a nurse's assistant at one of Nexion's nursing homes for elderly residents with mental conditions. Id. For a period of several months, Pete Patino, a resident with schizophrenia, directed offensive racial remarks at Johnson three to four times a week. Id. at 2. Patino "constantly" called Johnson a "nigger" and said things like, "niggers are no good; they steal" and "I hope they all burn in hell." EEOC Op. Br. at 4.<1> Johnson's coworkers witnessed Patino's outbursts, and some laughed. Id. at 3-4. Although Johnson complained to management, the abuse continued and then intensified; Patino called Johnson a "nigger" every time he saw him. Id. at 4-5. The only relief he received was on the weekends when one of the charge nurses, who lacked the authority to assign Johnson to another unit, assigned Johnson away from Patino on the same unit. Id. at 6. Johnson eventually complained to Karen Kersch, the highest-level supervisor, that Patino had said "Get this nigger away from me . . . They ain't nothing but rapists and killers." Id. at 7. Kersh responded, "[W]ell, ain't that the truth? Ain't that what niggers do?" Id. Patino's treatment and Nexion's failure to help him made Johnson feel humiliated and embarrassed. Id. He also worried that Patino would have him fired because he was black. Id. at 8. Within weeks, Patino accused Johnson of threatening him. Id. Although Johnson denied it, Nexion fired him. Id. at 8-9. Soon afterwards, Nexion discharged Patino for making verbal and physical threats. Id. at 12. A panel of this Court affirmed summary judgment. Although the panel found that the harassment was subjectively abusive to Johnson, the panel concluded that the harassment was not objectively abusive. Slip op. at 3. Citing Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), and Hockman v. Westwards Commc'ns, 407 F.3d 317 (5th Cir. 2004), the panel said that whether an environment is objectively abusive depends on the totality of the circumstances, including "the frequency and severity of the discriminatory conduct, whether it is physically threatening or humiliating as opposed to a mere offensive utterance, whether it unreasonably interferes with an employee's work performance, and whether the complained-of conduct undermines the plaintiff's workplace competence." Id. The panel also determined that its decision was guided by Cain v. Blackwell, 246 F.3d 758 (5th Cir. 2001), in which a home health care worker brought a claim for sexual harassment based on sexual advances and racial comments made by her elderly patient, who suffered from Parkinson's and Alzheimer's diseases. The panel quoted Cain as stating, "‘Cain's daily routine included dealing with the victims of [Alzheimer's and Parkinson's] diseases and their particular failings'" and that "‘[i]n this context, [the harasser]'s improper requests and tasteless remarks can not form the basis of a justiciable claim for sexual harassment.'" Id. (quoting Cain, 246 F.3d at 760). The panel denied that Cain "establish[es] a bright-line rule that employees who care for disabled, elderly patients can never succeed on a title VII claim" but stated that "the Cain court's discussion of the unique circumstances involved in caring for mentally diseased elderly patients [was] particularly persuasive." Id. at 3-4. The panel also agreed with the EEOC that Cain is factually distinguishable from this case but did not say in what way. Id. at 3. Next, the panel relied on the factors used in Harris and Hockman to determine whether the harassment was objectively abusive. Id. at 4. As to the severity and frequency of the conduct, the panel concluded that Patino's slurs were "highly discriminatory" and occurred "three to four times a week." Id. Nevertheless, the panel concluded that the comments were "not so frequent as to pervade the work experience of a reasonable nursing home employee, especially considering their source." Id. The panel also concluded that Patino's harassment "was not physically threatening or humiliating; it consisted only of [quite] offensive utterances." Id. The panel further found that "the EEOC's claim fails because the harassment Johnson suffered did not objectively interfere with his work performance or undermine his workplace competence." Id. According to the panel, "[a]bsorbing occasional verbal abuse" from Johnson's patients was "an important part of the job." Id. Emphasizing the "unique aspect of Johnson's line of employment" and that "most of the people around him were unable to control what they said or did," the panel concluded, "It is objectively unreasonable for an employee in such a workplace to perceive a racially hostile work environment based solely on statements made by those who are mentally impaired." Id. Stating that "Johnson's work environment was not objectively hostile . . . given the totality of the circumstances," the panel affirmed summary judgment. Id. ARGUMENT Rehearing is necessary because the panel's decision conflicts with established Supreme Court law, authority from this Court, and decisions from four other circuits, and because a reasonable jury could find Nexion liable for the racial harassment directed at Johnson. A. The panel effectively held that employees who are verbally harassed by mentally impaired patients can never bring a hostile work environment claim, contravening Supreme Court law and the law of this Circuit and conflicting with decisions from four other circuits. Although the panel purported to consider the totality of the circumstances in concluding that Johnson's work environment was not objectively abusive, the panel's decision clearly rests on its conclusion that it "is objectively unreasonable for an employee . . . to perceive a racially hostile work environment based solely on statements made by those who are mentally impaired." Slip op. at 4 (also emphasizing the "unique aspect of Johnson's line of employment"), at 3-4 (finding "the Cain court's discussion of the unique circumstances involved in caring for mentally diseased elderly patients to be particularly persuasive"). To the extent the panel's holding relies on this Court's decision in Cain and properly interprets Cain as holding that employees who are verbally harassed by mentally diseased elderly patients can never prevail on a hostile work environment claim,<2> this Court should overrule Cain because it cannot be reconciled with Supreme Court law or the law of this Court. The Supreme Court's framework for analyzing harassment claims is well established. Racial harassment is actionable under a hostile work environment theory when the harassment is "sufficiently severe or pervasive to alter the conditions [of the victim's] employment and create an abusive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). In Harris, 510 U.S. at 21-22, the Court held that a plaintiff must show that the workplace was both subjectively and objectively abusive. Some non-exhaustive factors relevant to a determination of whether the harassment was objectively abusive include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. The Court clearly stated in Harris that courts must look at "all the circumstances" and that "no single factor is required." Id. The Court further emphasized in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82 (1998), that "the objective severity of harassment should be judged . . . considering ‘all the circumstances'" and that the "real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." While the panel ostensibly undertook an "individualized inquiry" into whether the harassment in this case was objectively severe or pervasive, slip op. at 3, the panel also concluded that the "unique aspect" of Johnson's work, i.e., caring for people who were "often unable to control what they said or did," made it objectively unreasonable for him to perceive a racially hostile work environment based on Patino's egregious racial slurs and Nexion's inaction, slip op. at 4. Thus, the panel effectively carved out an exception to Title VII that does not exist: employers are immune from liability for harassment perpetuated by mentally impaired residents, even if employers know about the harassment and could, as in this case, easily remedy it. By making a single factor – the mentally impaired status of the harasser – dispositive, the panel's holding contravenes the Supreme Court's directive in Harris and Oncale that the totality of the circumstances must be considered in determining whether a work environment is abusive and that no single factor is required or, by clear implication, determinative. Harris, 510 U.S. at 23; Oncale, 523 U.S. at 81-82. The panel's reasoning is also erroneous and in conflict with Oncale and precedent from this Court because it wrongly relies on the purported inability of mentally impaired residents to form intent. Slip op. at 4 (emphasizing the "unique aspect" of working "in a place where most of the people around him were often unable to control what they said or did"). Even assuming that mentally impaired individuals can never form the intent to harass, this fact does not establish as a matter of law that Johnson's work environment was not objectively abusive because "it is not necessary to show intent in a case challenging a discriminatory working environment." Vaughan v. Pool Offshore Co., 683 F.2d 922, 925 n.3 (5th Cir. 1982). Instead, as the Supreme Court has stated, the focus in a hostile work environment case is on how the harassment was "experienced by its target." Oncale, 523 U.S. at 81. The panel's reasoning is also flawed because it misapprehends the Commission's argument and the theory underlying cases of third-party harassment. It was not solely Patino's conduct that created the hostile work environment; instead, it was also Nexion's exacerbation of that conduct and its failure to remedy it that created the hostile work environment. Br. at 30 ("A jury could conclude that being called a ‘nigger' repeatedly in the workplace and having his numerous complaints ignored . . . altered Johnson's terms, conditions and privileges of employment."), at 35 ("A jury could find that" Kersh's response to Johnson's complaint "escalate[d] the hostile work environment."); see also 29 C.F.R. § 1604.11(e) (employers may be liable for acts of third parties "where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action"); Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir. 1997) (in case of third-party harassment, stating that the patient's sexual assaults "and the belief that [the employer] was not going to do anything to stop it" supported a finding of a hostile work environment) (emphasis added). The panel's opinion also directly conflicts with decisions from the Eighth and Tenth Circuits holding that there is no blanket Title VII exemption for employers whose mentally impaired residents harass employees. In Crist, the Eighth Circuit explicitly rejected the district court's reasoning that "given the unique set of facts, particularly [the harasser's] severe developmental disabilities, his conduct could not constitute sexual harassment" where the plaintiffs worked in a residential home with developmentally disabled patients. Crist, 122 F.3d at 1110. The court held that a jury could find that the employer's response to the harassment "implicitly or even explicitly requir[ed] the appellants to endure repeated sexual assaults as an essential part of their job" and therefore altered the plaintiffs' working conditions. Id. at 1111. Similarly, in Turnball v. Topeka State Hospital, 255 F.3d 1238, 1243 (10th Cir. 2001), the Tenth Circuit "easily" concluded that the jury was reasonable in finding that the plaintiff had been subject to a hostile work environment where she had been assaulted by a patient in a residential center, despite the patient's mental illness. The panel's decision is also at odds with decisions from the Sixth and Ninth Circuits concluding that a hostile work environment can be based on the conduct of prison inmates, who, like mentally impaired patients, are not easily controlled and are understood by employees to be prone to offensive conduct. See Freitag v. Ayers, – F.3d – , Nos. 03-16702, 03-17184, 03-17398, 2006 WL 2614120, at *7 (9th Cir. Sept. 13, 2006) (rejecting argument that "prisons, due to their distinctive character and problems, and in particular their ‘inherently hostile environment,' are immune from lawsuits by correctional officers arising from sexual harassment by inmates"); Slayton v. Ohio Dep't of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000) (acknowledging that prison employees have "accepted the probability that they will face inappropriate and socially deviant behavior" but holding that prison could be liable for inmate harassment because it had failed to take appropriate steps to remedy or prevent it). Accordingly, rehearing is warranted. B. The panel's decision was erroneous because a reasonable jury could find that the harassment was objectively abusive and Nexion was liable for it. The panel erred in concluding that the harassment was not objectively abusive. While the panel properly recognized that Patino's insults were "highly discriminatory," the panel wrongly concluded that the comments were too infrequent to pervade the work experience and were not humiliating because they "consisted only of [quite] offensive utterances." Slip op. 4. The comments in this case went far beyond infrequent offensive utterances. Patino called Johnson a "nigger" and said things like, "all niggers are rapists and murderers," three to four times a week for months – and then the comments became even more frequent. Br. at 4 (also citing Johnson's testimony that Patino "constantly" called him "nigger"). Thus, Patino's comments were not only frequent but deeply offensive. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) ("Far more than a ‘mere offensive utterance,' the word ‘nigger' is pure anathema to African- Americans."). The panel's finding that the harassment was insufficient to even establish a jury question conflicts with authority from this Court recognizing that "‘nigger' is a universally recognized opprobrium, stigmatizing African-Americans because of their race," Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993), and that frequent racial slurs can be sufficiently severe or pervasive to alter the conditions of employment. Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (evidence of repeated racial slurs, including being called "nigger," created factual issue as to whether environment was abusive); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1049 n.9 (5th Cir. 1996) ("Discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to" be abusive.). Even if the panel properly found that Patino's conduct alone was not objectively abusive – which the Commission strongly disputes – the panel's decision was erroneous because it overlooked additional evidence in the record from which a jury could find that the harassment was severe and humiliating: Johnson's co-workers witnessed the abuse and some laughed, and Nexion ignored Johnson's repeated complaints. Significantly, Nexion "exacerbate[d] the hostile working conditions suffered by Johnson" when Adminsitrator Karen Kersh responded to Patino's statement that "niggers" were "nothing but rapists and killers," by telling Johnson, "ain't that the truth? Ain't that what niggers do?" Br. at 35, 7. Thus, even accepting the panel's premise – that it is objectively unreasonable for an employee to perceive a racially hostile work environment based on statements from mentally impaired patients – the panel's decision is erroneous because a jury could easily find that the environment was objectively abusive once Kersh, the highest-level official at the home, called Johnson a "nigger" and thereby endorsed Patino's abuse. Given Kersh's comment and Nexion's failure to remedy the harassment, a jury could therefore find that Nexion altered Johnson's working conditions by requiring him to endure repeated and egregious racial slurs as a condition of continued employment. Crist, 122 F.3d at 1111 (jury could find that management's failure to take seriously harassment complaints "implicitly or even explicitly require[ed] the appellants to endure repeated sexual assaults as an essential part of their job"). The panel additionally overlooked evidence that Nexion further intensified the severity of the harassment when it ignored Patino's status as a bigot who had been habitually harassing Johnson and fired him based on Patino's unfounded accusation of abuse. Br. at 8- 12. Finally, the panel clearly erred in holding that "the EEOC's claim fails because the harassment Johnson suffered did not objectively interfere with his work performance." Slip op. at 4. Whether the harassment interfered with his work performance is – like evidence of Johnson's expectations given his decision to work in a home for mentally impaired elderly residents – just one factor for a jury to consider; no single factor is dispositive. Harris, 510 U.S. at 22 (stating that regardless of whether the harassment affected an employee's job performance, "the very fact that the discriminatory conduct was so severe or abusive that it created a work environment abusive to employees . . . offends Title VII's broad rule of workplace equality"); Crist, 122 F.3d at 1111 (stating that whether environment was abusive required "particularized consideration of the circumstances, including the frequency of the conduct and its severity, [], and . . . the appellants' expectations given their choice of employment" in home for developmentally disabled). Although the panel did not reach the issue, there is also more than enough evidence for a jury to conclude that Nexion "knew or should have know of the harassment and failed to take remedial action." Cain, 246 F.3d at 760. Johnson complained multiple times to supervisors, including the home's administrator, about the harassment, which often occurred in public areas. Br. at 5. Thus, a jury could easily find that Nexion knew of the harassment. In fact, a jury could not reasonably find to the contrary, and Nexion never disputed that it had notice. Def. Br. at 27-29. Even assuming for the sake of argument that Patino could not control his conduct (and therefore that Nexion could not stop his verbal attacks), a reasonable jury could find that Nexion failed to take remedial action. Turnball, 255 F.3d at 1245 (stating that because it "is not always possible for an employer to completely eliminate offensive behavior," liability turns on "whether the ‘remedial and preventative action was reasonably calculated to end the harassment'") (citation omitted); Crist, 122 F.3d at 1111-12 (recognizing that the employer "faced multiple obstacles in immediately preventing" the harasser "from acting out, including [his] limited ability to understand or respond to directives and the regulatory framework within which [the employer] must operate" but finding that the employer could still be liable because it "clearly controlled the environment in which [the harasser] resided, and it had the ability to alter those conditions to a substantial degree"). The Commission produced evidence that Nexion easily could have remedied the harassment by assigning Johnson to another hall away from Patino, as the weekend charge nurse did, or to another unit. Br. at 6. CONCLUSION For the foregoing reasons, the EEOC respectfully requests rehearing or rehearing en banc. Respectfully submitted, RONALD S. COOPER ___________________________ General Counsel ANNE NOEL OCCHIALINO Attorney CAROLYN L. WHEELER Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LORRAINE C. DAVIS Office of General Counsel Assistant General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 ADDENDUM EEOC v. Nexion Health at Broadway d/b/a Broadway Lodge, Case No. 05-51770 (5th Cir. 2006), slip opinion CERTIFICATE OF SERVICE I hereby certify that one electronic copy and two hard copies of this petition for rehearing were sent overnight mail, postage prepaid, on this 12th day of October, 2006, to the following: Terrence B. Robinson NEEL & HOOPER 1700 West Loop South, Ste. 1400 Houston, TX 77027 Matthew R. Pearson GRAVELY & PEARSON, LLP 111 Soledad, Ste. 300 San Antonion, TX 78205 _________________________ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 ************************************** <> <1> Full citations to the record are contained in the EEOC’s opening brief at the pages cited in this petition. <2> Although it took pains not to say so explicitly, the panel seemed to agree with the district court that the holding of Cain is that “third-party hostile work environment claim[s] cannot exist simply because the offender is an impaired patient in a nursing facility . . . at least when the harassment is verbal only.” RE, Tab 3 at 8.