Turnbull v. Topeka State Hospital, No. 00-3086

• Citation: 255 F.3d 1238
• Decision Date: 06 July 2001
• Docket Number: No. 00-3086
• Parties: (10th Cir. 2001) CYNTHIA TURNBULL, Plaintiff-Appellant, v. TOPEKA STATE HOSPITAL and THE STATE OF KANSAS, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1238

255 F.3d 1238 (10th Cir. 2001)

CYNTHIA TURNBULL, Plaintiff-Appellant, v. TOPEKA STATE HOSPITAL and THE STATE OF KANSAS, Defendants-Appellees.

No. 00-3086

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 6, 2001

Appeal from the United States District Court for the District of Kansas (D.C. No. 98-CV-2222-GTV) [Copyrighted Material Omitted] Paul F. Pautler, Jr., of Blackwell Sanders Peper Martin LLP, Kansas City, Missouri, for Plaintiff-Appellant.

Deborah June Purce, Topeka, Kansas (Alan D. Hughes, Legal Division, Department of Social and Rehabilitation Services, Topeka, Kansas, with her on the brief), for Defendants-Appellees.

Before TACHA, Chief Judge, SEYMOUR and BRORBY,Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiff/Appellant Cynthia Turnbull, a psychologist at the Topeka State Hospital (TSH) in Kansas, sued her employer and the state for sexual harassment after she was sexually assaulted by a patient. The jury found a sexually hostile work environment existed at TSH, but it split over whether TSH should be held legally responsible for that environment. After learning of the jury's inability to decide, the district court granted an earlier defense motion for judgment as a matter of law. The sole issue on appeal is whether that ruling was proper. We hold that it was not, and remand the case for further proceedings.

I

We review de novo a grant of judgment as a matter of law. Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796 (10th Cir. 2001). Rule 50 of the Federal Rules of Civil Procedure authorizes a trial judge to grant judgment as a matter of law "if, after a party has been fully heard on an issue, there is no legally sufficient evidentiary basis for a reasonable jury to find for the party . . . ." Id. Because a court does not lightly presume the decision of a reasonable juror, judgment "may be granted only if the evidence points but one way and is susceptible to no reasonable inference which may support the opposing party's position." Id. (internal quotations omitted). Thus, when a defendant seeks judgment as a matter of law, the controlling question is whether the plaintiff has arguably proven a legally sufficient claim.

In making that determination, "[w]e do not weigh the evidence, pass on the credibility of the witnesses, or substitute our conclusions for that of the jury." Pizza Hut v. Lockard, 162 F.3d 1062, 1068 (10th Cir. 1998) (quotations and citations omitted). Instead, we view "the facts and all reasonable inferences from them . . . in the light most favorable to the appellant." Phillips, 244 F.3d at 796. Accordingly, although the parties set forth varying versions of the underlying facts, we consider those facts in the light most favorable to Dr. Turnbull.

II

Topeka State Hospital was a state-run inpatient mental health center¹ which treated patients with severe mental illnesses for whom outpatient treatment options had failed. TSH was not a jail. Patients were treated in the least restrictive environment possible, although all patients had been admitted because they posed some danger to themselves or others. While the hospital had an obligation to admit anyone referred there, unusually violent offenders could be transferred to more secure facilities.

Cynthia Turnbull, a Ph.D. psychologist, came to TSH in 1993. She was hired to start a group therapy program for the adolescent treatment unit and to conduct individual and group therapy with adolescent male inpatients. One treatment issue that arose regularly was the "sexual acting out" displayed by many of the patients. TSH staff were aware this posed potential dangers, dangers that were tragically highlighted when a female employee was murdered by a patient in 1992. Dr. Turnbull recognized the risks of her job, and the hospital required that she regularly review and sign a job description that included mention of the risk of assault by patients. The hospital's general approach toward sexual acting out by patients, however, was that it was a clinical issue to be addressed in the patient's treatment program. The sexual harassment training that was required for each new staff member made no mention of how to respond to sexual harassment by patients.

Chronic understaffing at the hospital meant female staff often felt unsafe. While the hospital had several policies directed at the safety of staff members, Dr. Turnbull and others complained these measures were not always effective. For example, TSH staff received training in managing assertive or unruly patients, but the training focused on appropriate ways to calm the patient rather than self-defense to protect the staff member. Although psychologists could request extra staff to attend a group therapy session or other treatment, the shortage of staff meant those requests were rarely met. The hospital purchased personal alarms known as "screechers" after the 1992 murder, but they had fallen out of use by the time Dr. Turnbull started work and she was never told of their availability. Dr. Turnbull testified about her safety concerns before an Executive Committee meeting in 1995, but she alleges the meeting minutes were later "sanitized" to remove all mention of her concerns. The Executive Committee did note in 1996 that another group of staff was expressing a "reality based fear" of conditions on the ward.

Other than her testimony to the Executive Committee, Dr. Turnbull made no formal reports of her safety concerns. She describes several conversations about safety with her supervisors in the psychology department. Both warned her not to send memoranda or file incident reports because her career would be hurt if the administration began to view her as a troublemaker.

The safety concerns were exacerbated for the psychologists because of a lack of adequate treatment facilities on the adolescent unit. There were no treatment rooms within that unit, and the one treatment room with a one-way mirror for visual monitoring was on an isolated floor in a separate building. During renovations on the adolescent unit, Dr. Turnbull requested that the hospital construct a treatment room with a large window in order to provide a safe place to conduct therapy, but no such room was provided. Dr. Turnbull met with female patients and smaller male patients in her office, but she was uncomfortable meeting with larger males in the small, enclosed space. The only other options within the unit were public spaces that provided little protection for confidential conversation, and tiny seclusion rooms whose only furniture was a mattress on the floor. In pleasant weather, Dr. Turnbull and the other psychologists frequently solved the space dilemma by walking with patients around the hospital grounds as they spoke.

A patient named James Stout came into this environment in June 1996. Mr. Stout had sexually assaulted two female staff members at another state hospital prior to his transfer, but that fact was not communicated to TSH. His diagnosis on admission was "oppositional defiant disorder," a relatively mild diagnosis for a psychiatric inpatient but one characterized by a tendency toward aggression and difficulty submitting to authority. Dr. Turnbull performed his intake evaluation and noted he had trouble respecting personal boundaries when agitated. Although she did not believe his reports of past rapes and of voices telling him to "kiss" and "feel" somebody, she noted in his file that staff should not meet him alone in small, enclosed areas.

Despite these early warnings and one period when Mr. Stout was restrained for aggression, his therapy proceeded well, and by August he was allowed the privilege of field trips off the hospital grounds. He had several therapy sessions with Dr. Turnbull and was never sexually inappropriate toward her. On August 26, the weather was fine and many people were outside enjoying the day, so they headed outside to walk the grounds during their therapy session. When they reached a slightly secluded area, he suddenly attacked. He knocked her to the ground, undressed her and digitally penetrated her, bit and choked her, and repeatedly threatened to kill her. Dr. Turnbull suffered post-traumatic stress disorder after the assault and never returned to the hospital.

In addition to filing criminal charges against James Stout, Dr. Turnbull sued TSH and the State of Kansas under Title VII for allowing a sexually hostile work environment to exist at the hospital. At trial, the jury heard almost seven days of evidence. TSH made a Rule 50 motion for judgment as a matter of law at the close of plaintiff's evidence and again at the close of its own, arguing Dr. Turnbull had not proven a legally sufficient hostile work environment claim. The court took each motion under advisement, and the jury began its deliberations.

The jury was asked to determine two issues: whether a sexually hostile work environment existed at TSH and, if so, whether the hospital or state should be held legally responsible. After two half-days of deliberation, the jury reported it was unable to reach a unanimous decision on the second question and felt further deliberation would be fruitless. The court revisited defendants' Rule 50 motions at that time, holding without discussion that the evidence had not shown a cognizable claim of gender based sexual harassment and dismissing the case.

III

"Sexual harassment is actionable under a hostile work environment theory when the harassing conduct is 'sufficiently severe or pervasive to alter the conditions [of the victim's] employment and create an abusive working environment.'" Lockard, 162 F.3d at 1071, quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). There is no "mathematically precise test" for determining whether the conduct is sufficiently severe or pervasive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). Some factors to be weighed include "the frequency of the discriminatory conduct; its severity; whether it is physically...