                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                            F I L E D
                      In the                                September 1, 2006
  United States Court of Appeals                        Charles R. Fulbruge III
            for the Fifth Circuit                               Clerk
                _______________

                  m 05-51770
                Summary Calendar
                _______________




EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                     Plaintiff-Appellant,

                       AND

        TERRANCE DAREELL JOHNSON,

                                     Intervenor Plaintiff-Appellant,

                     VERSUS

    NEXION HEALTH AT BROADWAY, INC.,
      DOING BUSINESS AS BROADWAY LODGE,

                                     Intervenor Defendant-Appellee.


          _________________________

    Appeal from the United States District Court
         for the Western District of Texas
                 m 5:04-CV-872
      ______________________________
Before SMITH, WIENER, and OWEN,                           his superiors on many occasions, but they took
  Circuit Judges.                                         no action. Patino alleged that Johnson threat-
                                                          ened him physically. Nexion fired Johnson for
JERRY E. SMITH, Circuit Judge:*                           the alleged abuse and for lying during an in-
                                                          ternal investigation into the abuse allegations.
   The Equal Employment Opportunity Com-
mission (“EEOC”) appeals the dismissal on                    The EEOC sued Nexion, and Johnson in-
summary judgment of its claim that Terrence               tervened as a plaintiff. The suit alleged that
Johnson,1 a former employee of Nexion Health              Nexion forced Johnson to work in a racially
at Broadway, Inc. (“Nexion”), was subjected               hostile work environment in violation of 42
to a racially hostile work environment in                 U.S.C. § 2000e et seq. The district court
violation of title VII of the Civil Rights Act of         granted summary judgment to Nexion and dis-
1964, 42 U.S.C. § 2000e et. seq. We affirm.               missed the case. This appeal follows.

                       I.                                                         II.
    Nexion operates a nursing home in San An-                                     A.
tonio, Texas, that cares primarily for elderly               We review a summary judgment de novo,
persons with mental conditions such as demen-             applying the same standard as did the district
tia, schizophrenia, and Alzheimer’s disease.              court. Terrebonne Parish Sch. Bd. v. Mobil
Nexion employed Johnson as a certified                    Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).
nurse’s assistant caring for the residents’ daily         Summary judgment is proper if the materials
needs. Seventy-year-old Pete Patino, one of               before the court show that there is no genuine
the residents Johnson cared for, began direct-            issue as to any material fact and that the mov-
ing vehement racial slurs against Johnson, who            ing party is entitled to judgment as a matter of
is black, in early 2003. Patino, who is His-              law. See FED. R. CIV. P. 56(c).
panic, also made many disparaging racial
remarks about whites and Hispanics during the                                    B.
same time period. He is a schizophrenic and                  To prevail on a title VII hostile work envi-
has had a history of mental illness since age             ronment claim,2 a plaintiff must prove that
thirteen.                                                 (1) he belongs to a protected group; (2) he
                                                          was subjected to unwelcome harassment; (3)
   Patino continued to make offensive racial              the harassment of which he complained was
comments against Johnson, including frequent              based on race; (4) the harassment affected a
use of the word “nigger,” approximately three             term, condition, or privilege of employment;
to four times a week over the next few                    and (5) the employer knew or should have
months. Johnson reported this verbal abuse to             known of the harassment and failed to take
                                                          remedial action. Frank v. Xerox Corp., 347
   *
    Pursuant to 5th Cir. R. 47.5, the court has de-
termined that this opinion should not be published
                                                             2
and is not precedent except under the limited cir-             Hostile work environment claims based on ra-
cumstances set forth in 5th Cir. R. 47.5.4.               cial discrimination are reviewed under the same
                                                          standard as are those based on sexual discrimina-
   1
   Johnson intervened in this appeal and has              tion. Nat’l R.R. Passenger Corp. v. Morgan, 536
adopted the EEOC’s briefs in their entirety.              U.S. 101, 116 n.10 (2002).

                                                      2
F.3d 130, 138 (5th Cir. 2003). Johnson’s                      The district court relied primarily on Cain
claim satisfies the first three requirements              v. Blackwell, 246 F.3d 758, 760-61 (5th Cir.
because he is black and was subjected to                  2001). There, Cain, who provided home
unwelcome harassment from Patino on that                  health services to the elderly, sued her employ-
basis.                                                    er, alleging a hostile work environment created
                                                          by sexual advances and racial slurs from a
                        C.                                patient who suffered from Parkinson’s and
    We must determine whether the racial slurs            Alzheimer’s. We held that, given the unique
directed against Johnson by Patino qualify as             circumstances of Cain’s employment, the
actionable harassment under the fourth part of            abuse she suffered was insufficient to establish
the test. For harassment to affect a term, con-           actionable harassment under title VII. We
dition, or privilege of employment, it must be            explained:
subjectively and objectively abusive. Hockman
v. Westward Commc’ns, LLC, 407 F.3d 317,                     The home health care industry was created
325 (5th Cir. 2004) (citing Harris v. Forklift               to assist individuals who lack the ability to
Sys., Inc., 510 U.S. 17, 21-22 (1993)). The                  care for themselves. Many of these indi-
harassment Johnson suffered was subjectively                 viduals become dependent on home health
abusive to him, so we turn to whether that                   care as a direct result of debilitating dis-
harassment was also objectively abusive.3                    eases such as Alzheimer’s and Parkinson's.
    Whether an environment is objectively hos-               As an Advanced employee, Cain’s daily
tile or abusive is determined by considering the             routine included dealing with the victims of
totality of the circumstances. Harris, 510 U.S.              those diseases and their particular failings.
at 23. Although no single factor is required,                In this context, Marcus’s improper requests
courts look to the frequency and severity of                 and tasteless remarks can not form the basis
the discriminatory conduct, whether it is phys-              of a justiciable claim for sexual harassment.
ically threatening or humiliating as opposed to
a mere offensive utterance, whether it unrea-             Id. at 760.
sonably interferes with an employee’s work
performance, and whether the complained-of                   Cain does not establish a bright-line rule
conduct undermines the plaintiff's workplace              that employees who care for disabled, elderly
competence. Hockman, 407 F.3d at 325-26.                  patients can never succeed on a title VII claim.
                                                          The specific circumstances of each harassment
                                                          claim must be judged to determine whether a
                                                          reasonable person would find the work envi-
   3
     Whether Nexion responded appropriately to            ronment hostile or abusive. The EEOC cor-
Johnson’s complaints is immaterial unless the har-        rectly points to factual distinctions between
assment Johnson absorbed from Patino is legally           Cain and the case before us now. Resolution
actionable. Because Patino’s comments did not             of Johnson’s case requires an individualized
affect a term, condition, or privilege of Johnson’s       inquiry into the circumstances of the harass-
employment, we do not consider Nexion’s response          ment, and it would therefore be error to rely
to the situation. The fact that Johnson was fired
                                                          on Cain alone in deciding this case. That said,
after Patino raised an allegation of abuse against
                                                          we find the Cain court’s discussion of the
him is likewise irrelevant to whether, as a legal
matter, Patino’s comments created a hostile work-
                                                          unique circumstances involved in caring for
place environment for Johnson.                            mentally diseased elderly patients to be partic-

                                                      3
ularly persuasive, and our reasoning in Cain          tally impaired.
guides our decision here.
                                                         Because Johnson’s work environment was
   We look now to the factors that are often          not objectively hostile or abusive given the
used in determining whether a workplace en-           totality of the circumstances, it cannot be said
vironment is objectively hostile or abusive. As       that Patino’s comments affected a condition,
to the severity of the conduct, Patino’s com-         term, or privilege of Johnson’s employment.
ments were highly discriminatory. As to their         Therefore, no rational trier of fact could have
frequency, Johnson allegedly heard the com-           held Nexion liable for providing Johnson with
ments about three to four times a week over a         a hostile work environment. The summary
number of months.                                     judgment is AFFIRMED.

    Although these were more than isolated in-
stances of harassment, they were not so fre-
quent as to pervade the work experience of a
reasonable nursing home employee, especially
considering their source. Patino’s harassment
was not physically threatening or humiliating;
it consisted only of offensive utterances, al-
though those utterances were quite offensive.

    These circumstances alone cannot support
a hostile work environment claim absent some
objectively detrimental impact on Johnson’s
work performance. The EEOC’s claim fails,
because the harassment Johnson suffered did
not objectively interfere with his work perfor-
mance or undermine his workplace compe-
tence. Johnson’s job required him to deal with
the tragic failings of elderly people whose
minds have essentially failed. Absorbing
occasional verbal abuse from such patients was
not merely an inconvenience associated with
his job; it was an important part of the job
itself.

    This unique aspect of Johnson’s line of em-
ployment is a vital consideration. He worked
in a place where most of the people around
him were often unable to control what they
said or did. It is objectively unreasonable for
an employee in such a workplace to perceive
a racially hostile work environment based sole-
ly on statements made by those who are men-

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