United States District Judge Leslie Kobayashi recently granted summary judgment on an employee's claim of sexual harassment based on inappropriate conduct by a dialysis patient.

The employee, who worked as a registered nurse, alleged that the patient touched her shoulder, back, arm and back of her breast. She also alleged that he made a crude gesture with his belt buckle, and verbally harassed her. The only misconduct she reported to the employer, however, was that the patient touched her shoulder and her back. Immediately after becoming aware of her report, the company credited her account, met with the patient and required him to sign a behavioral contract, and made plans to assign other employees to work with the patient. In concluding that summary judgment was proper, Judge Kobayashi reasoned that the only conduct that the employee reported to the company, touches to her back and shoulder, did not appear to rise to the severe or pervasive level required to proceed. The court noted that with respect to the conduct that she did not report, including touches to the back of her breast, a crude gesture and verbal harassment, "an employer cannot be held liable for misconduct of which it is unaware." The court also noted that the company's response to the complaint was adequate, as there were no allegations that the employee was forced to come into direct contact with the patient after the company became aware of her complaint. Read more.