A gunshot victim who was molested by a transgender nurse has sued a Cincinnati hospital under the dubious theory that the nurse was a “defective” employee simply because he dressed as a woman.

Chad Thrasher

Dereco Evans's lawsuit ventures into uncharted legal waters by arguing that the University of Cincinnati Hospital is liable for negligent supervision of his assailant even though he does not allege phlebotomist Chad Thrasher had a prior history of molesting patients.

Evans was recovering from a gunshot wound to his left leg in February 2009 when Thrasher fondled him and touched his penis. The mere fact that Thrasher is transgender, he suggests in his complaint, made him a foreseeable danger to patients.

The hospital knew or should have known that Thrasher was “incompetent, inappropriate, or defective, and that his employment while masquerading as a member of the female gender in a hospital environment involved an unreasonable risk of harm to others,” Evans says.

The case appears to rest on the shakiest of foundations — not least because Thrasher's choice to present himself as a woman was protected under a landmark 6th U.S. Circuit Court of Appeals decision that says employers may be held liable for discriminating against transsexuals based on their gender nonconformity. Smith v. City of Salem, 378 F.3d 566 (2004).

Thrasher, who, as a phlebotomist, drew blood from patients, was convicted in June 2009 of gross sexual imposition and is serving an 18-month prison term. During his trial, he showed up for court dressed in a woman’s wig, necklace and heels.

Evans was admitted to the hospital Feb. 11, 2009 and his identity and location were kept secret because the gunman who shot him was still at large. On Feb. 19, the suit says, he lay helpless in bed as Thrasher, among other things, grabbed his face, "applied lip gloss and/or a cosmetic substance" to his lips, and "proceeded to kiss Plaintiff in a very intimate manner."

An employer may be liable for negligent supervision if the employer “knew or should have known that its employee would subject a third party to an unreasonable risk of harm.” Evans hangs his case against the hospital on its “actual or constructive knowledge” of Thrasher's defectiveness as an employee.

The hospital “wantonly and/or recklessly and/or negligently permitted, facilitated and acquiesced to [Thrasher's] practice of ... representing himself and dressing as a member of the female gender,” he alleges.

Evans is also suing a Cincinnati police officer who, after he complained to her, allegedly told him he “was making a fuss over nothing because he had not been raped" and suggested that he knew Thrasher was really a man.

The hospital has been criticized for hiring Thrasher in the first place. An employee with "an identity problem ... should not be allowed to interact with patients," says a posting on the Cincinnati Enquirer's website. "I think this hospital has taken diversity way too far."

But the complaint does not explain how Thrasher's cross-dressing made him a risk to patients. If he had dressed as a man, wouldn't he still have been able to molest Evans?

And given the precedent of Smith, wouldn’t the hospital have opened itself up to a Title VII discrimination suit if it had required Thrasher to dress as a man or denied him access to male patients? "[A] label, such as 'transsexual,' is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity,” the 6th Circuit said.

By Matt Reynolds
4/8/10