Jon Campisi Nov. 18, 2013, 7:07am


A judge has thrown out a complaint by a nursing assistant who had alleged

that Pennsylvania’s Department of Veteran’s Affairs placed her in harms way by assigning her to care for a resident known to have violent tendencies.

The plaintiff, Neyla Fandino, says the man she was assigned to take care of tried to rape her, and then threw her through a glass door.

U.S. District Judge J. Curtis Joyner, sitting in the Eastern District of Pennsylvania, granted a motion by the Department of Veteran’s Affairs to dismiss the civil action on Nov. 12, agreeing with the defendant that the plaintiff failed to state a claim under the federal Rules of Civil Procedure.

In her complaint, Fandino had claimed that in late August 2012, a supervisor at the Southeast Veteran’s Center in Spring City, Pa. ignored the plaintiff’s assertions that the man she was assigned to work with was known to be violent.

The supervisor allegedly told the woman he didn’t “have time for this,” instructing Fandino to enter the room where the man was housed despite her protests.

The plaintiff says she was attacked by the man, who tried to rape her, and then threw her through a glass door.

Fandino claimed she sustained severe injuries and lost wages and benefits, along with emotional distress, embarrassment and humiliation.

The plaintiff accused the defendant of sexual harassment, discrimination and creating a hostile work environment under Title VII of the Civil Rights Act.

The judge wrote that the facts pled in the case could not sustain the plaintiff’s claims for sexual discrimination or sexual harassment.

The complaint alleges that Fandino was injured by a violent resident of the veteran’s facility, not by any employee, agent or other representative of the defendant, Joyner wrote.

“In the absence of any facts suggesting that this resident acted at the behest of or in the scope of any type of relationship with Defendant, in no way can we infer that Plaintiff’s injuries were the result of intentional sexual discrimination on the part of the Defendant,” the judicial ruling states.

For the same reason he tossed the sexual discrimination claim, Joyner also dismissed the sexual harassment claim lodged against the Department of Veteran’s Affairs, writing that there are “absolutely no averments that Defendant intentionally discriminated against Plaintiff because of her sex – all that is alleged is that she was directed by her supervisor to provide care to a violent resident.

“Further, the complaint alleges that Plaintiff was to care for this individual on just one date – August 24, 2012,” Joyner wrote. “Consequently, we cannot find that the requirement for severe or pervasive discrimination has been satisfied either. We therefore conclude that the complaint in this matter is properly dismissed in its entirety.”

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